Diakou v Islington Unison A Branch [1996] UKEAT 1253_95_0805

EAT
Diakou v Islington Unison A Branch
[1996] UKEAT 1253_95_0805 · 1996-05-08
MR JUSTICE MUMMERY (PRESIDENT) In what circumstances are a Trade Union and those acting on its behalf liable for racial discrimination in the employment field in the case of(a) a person who is a member of the Union and(b) a person who is not a member of the Union?The answer to that question in this appeal turns on the proper interpretation and application to the facts of this case of sections 1, 2, 11, 32 and 33 of the Race Relations Act 1976 ("the 1976 Act").The question, which is of considerable interest and some significance, has arisen in the context of an interlocutory appeal from the decision of the Chairman of the Industrial Tribunal sitting alone at Stratford on 21st September 1995. The Extended Reasons for the decision were sent to the parties on 18th October 1995 explaining why the Chairman(1) extended the time for the Applicant, Ms Eline Diakou, to bring a claim of racial discrimination against the Islington UNISON `A' Branch ("the Union") under S.11(3)(c) of the 1976 Act. (The Union does not appeal against that decision);(2) refused to grant Ms Diakou leave to amend her Originating Application to add a claim of victimisation against the Union and three individual respondents - a Union Convener, the Branch Secretary and a Union Steward. (Ms Diakou appealed against that decision by Notice of Appeal dated 23rd November 1995).On the hearing of the appeal Ms Diakou appeared in person and Mr Scott appeared for the Union and the three individuals. We thank them for their help in an unusual case involving detailed consideration of statutory provisions rarely invoked.

The Facts

As this case has not yet been heard on the merits, we make it clear that there are conflicts of fact yet to be resolved. We are, however, able to decide this appeal on the following undisputed facts.(1) On 14th September 1994 Ms Diakou, who is of Cypriot origin and is a Neighbourhood Manager in the employment of the London Borough of Islington ("the Council"), presented an Originating Application to the Industrial Tribunal alleging racial harassment by the Union.(2) Although she alleged that the action complained of took place on 20th July 1994, the details set out in her case contain allegations dating back to September 1992 in support of a general allegation that the Union had"...directly discriminated against her on the grounds of race, through systematically harassing her by disseminating misinformation about alleged instances of misconduct perpetrated by the Applicant".(3) The earliest incident is alleged to have taken place in September 1992 and took the form of alleged verbal abuse and physical threats by the Union Shop Steward when Ms Diakou crossed the Union picket line and went to work. The other allegations relate to events in 1993 and 1994: an alleged conspiracy by Union officials to discredit her by making allegations of fraud and misconduct and the detrimental consequences of those allegations. Paragraph 9 of the details of the Originating Application states a claim by Ms Diakou that"...there is collusion between the senior management and UNISON against her motivated on racial grounds... other Neighbourhood Managers who too crossed the picket line were not threatened in the same way as her, by UNISON".(4) The Union's Notice of Appearance, signed by the Branch Secretary and dated 1st November 1994, disputes in detail the allegations in Ms Diakou's application. No specific mention is made of Ms Diakou's membership status. There is no dispute, however, that on 21st December 1992 Ms Diakou wrote a letter to the Branch Secretary stating

"I write to advise you that I resign my NALGO membership as from today."

Ms Diakou informed us that she has not paid any subscription since then, though she continues to be sent UNISON material, including membership cards. She does not, however, claim to be a member of the Union since 21st December 1992.(5) Ms Diakou submitted a substantially amended Originating Application dated 10th May 1995, in which she alleged, in addition to direct racial discrimination contrary to S.1(1)(a) of the 1976 Act, victimisation. She added the three individual Union officials as respondents. The principal new allegation was that in February 1995 she was allocated to a new post as a Social Services Manager in a different office where the named Union convener worked and that the Union organised meetings to discuss her appointment, spread information about her being a bad manager "particularly on black and minority staff" and alleged she was guilty of fraud. As a result, the staff, who had never met her or worked with her, petitioned the Director of Social Services of the Council, indicating their opposition to her appointment and their unwillingness to work with her. Ms Diakou added"I believe these actions by UNISON `A' members and officers, were racially motivated and intended to continue their victimising practices until I was pressured enough to leave my job".(6) On 17th May 1995 the Industrial Tribunal informed Ms Diakou that there would be a Preliminary Hearing of the issue"...Whether the application discloses a claim that can be brought before an Industrial Tribunal under S.11 of the Race Relations Act 1976".The nature of the preliminary issue was clarified in a further letter of 20th June 1995, after a hearing originally fixed for 9th June had been adjourned at Ms Diakou's request. The particular points were that her application appeared to be out of time; that she accepted that she had resigned from the Union on 21st December 1992; that her new allegations of victimisation contrary to S.2 of the 1976 Act related to events after the date of her Originating Application and might not be accepted as an amendment, but possibly should be the subject of a new complaint; and that, in any event, Ms Diakou would "need to convince the Chairman that she can rely upon these allegations notwithstanding the earlier termination of her Union membership".Written representations were invited on the preliminary issue, so that they could be considered before the matter was restored for further legal argument.(7) The further hearing took place on 21st September 1995. Ms Diakou appeared in person, answered some questions and provided documents to the Chairman of the Tribunal. The Union appeared by the Branch Secretary.

The Decision of the Industrial Tribunal

The Chairman of the Industrial Tribunal decided, for the following reasons, that the matter could proceed as a claim only of racial discrimination against the Respondents in respect of the incident which occurred in September 1992.(1) Section 11 of the 1976 Act was the only section on which Ms Diakou could found a claim (in particular, S.11(3)(c)) which provides that -
"It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him -
...

(c) by subjecting him to any other detriment."

(2) Ms Diakou conceded that she could not bring any claim of race discrimination in the Industrial Tribunal in respect of events which occurred after her resignation from the Union on 21st December 1992.(3) She could bring a claim in respect of the alleged incident in September 1992, at which time she was a member of the Union. The Chairman decided that it was just and equitable to extend the time to enable her to pursue that claim.(4) As for the alleged victimisation based on the alleged incidents in February 1995, Ms Diakou was not entitled to pursue that claim against the Union or the individual Union officials, either by amendment to her Originating Application or by the issue of a new application because -(a) amendment was not possible, as the alleged victimisation occurred after the issue of the Originating Application;(b) she had no cause of action against the Union for vicarious liability in respect of actions taken against her by members (as distinct from employees) of the Union;(c) as against the individual respondents there was insufficient evidence for a claim of victimisation. "...there was no evidence whatever which could enable me to say that these persons would have known of the claim which the applicant has brought against the Union. Unless they knew that she had done so, then they cannot be liable for victimising her, contrary to S.2 ..."Ms Diakou applied to the Industrial Tribunal Chairman for a review of that decision, but that was refused on 22nd November 1995 on the grounds that it had no reasonable prospects of success. Ms Diakou also appeals against that decision.

Submissions of Ms Diakou

The main points made by Ms Diakou in support of the appeal were as follows:-

(1) The victimisation claim raises matters of fact which can only be determined on hearing all the evidence at a full hearing of the Tribunal. The Chairman did not hear all the evidence. For that reason he was wrong in ruling that there was insufficient evidence to bring proceedings against the individuals. He was clearly wrong in holding that the individuals did not know of the Originating Application issued by her against the Union. The Branch Secretary had signed the Notice of Appearance disputing her claim.(2) The Chairman failed to consider the fact that the Originating Application presented in September 1994 actually included a victimisation claim (contrary to S.2(1)(d) of the 1976 Act) and that the protected Act that she was relying on in her proposed amendment was the presentation of that application as yet a further instance of victimisation already complained of.

(3) It was an error on the part of the Chairman -

(a) to refuse her amendment on the basis that it was a new allegation of victimisation; and(b) to rule that she could not file a fresh application about the further victimisation by members of the Union in February 1995.(4) The Chairman of the Tribunal erred in refusing her application for a review on the ground that it had no reasonable prospects of success. She repeated that her claims raised matters of fact which could only be decided at a full hearing of the case.

Conclusions

In our judgment, Ms Diakou's appeal should be dismissed because the Chairman was legally correct in rejecting Ms Diakou's complaint of victimisation, whether brought in by way of amendment to the existing application or as the subject of a new action, against both the Union and the individual officers. We agree with Ms Diakou to the limited extent that the Chairman was in error in stating that, as regards the individuals, there was no evidence of their knowledge of her claim against the Union, but that error does not mean that the Chairman's overall conclusions were legally incorrect. We also dismiss the appeal against the review decision, as there was no error of law in that decision. There is a difference between the members of the Tribunal as to the correct reasoning for this result.In the view of the majority the legal position may be summarised as follows:(1) The jurisdiction of an Industrial Tribunal to hear complaints under the 1976 Act is limited by S.54(1). The jurisdiction is confined to two types of complaint, namely, a complaint by a person (the complainant) that another person (the respondent)
"(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or (b) is by virtue of S.32 or S.33 to be treated as having committed such an act of discrimination against the complainant."
We agree with the analysis of this section by the EAT in Nagarajan v. Agnew [1994] IRLR 61 at 65 (paragraph 29) that S.54(1)(b) is no wider than(a) because(b) contains the expression " such an act of discrimination" which refers back to the acts of discrimination mentioned in (a), and that those are acts against the complainant which are unlawful by virtue of Part II. That is entirely consistent with the scheme of the Act. Part I contains definitions of different acts of discrimination:(1) S.1 discrimination, commonly referred to as direct and indirect, in S.1(1)(a) and S1(1)(b) respectively; and section 2 discrimination, described in the heading as "by way of victimisation". But no where in section 1 or 2 is anything said about those acts of discrimination being unlawful. Those two sections contain definitions of what constitutes discrimination in certain circumstances. It is only in Part II that the Act prescribes acts as unlawful acts of discrimination.(2) On the analysis summarised in (1) above, it is not enough, as Ms Diakou suggested at some points in her argument, to allege that the act she complains of is an act of victimisation in S.2 of the 1976 Act. That section in Part I of the 1976 Act identifies or defines the discrimination by way of victimisation to which the Act applies. It does not, in itself, make the acts of victimisation unlawful. The provisions in Part II of the 1976 Act identify and define those acts in the employment field which are rendered unlawful acts of discrimination by the 1976 Act. In other words, Ms Diakou cannot succeed in the proceedings simply by alleging against respondents that she has been treated less favourably than other persons were treated and that she has been so treated by reason that she has brought proceedings under the 1976 Act.(3) The only section under which Ms Diakou can succeed in a claim for alleged unlawful acts of discrimination by her Union is S.11. For example, she does not and cannot claim unlawful discrimination by the Union under S.4 of the 1976 Act, which deals only with discrimination against applicants for employment and against employees. Ms Diakou is an employee of the Council. She was never an employee of, or an applicant for employment by, the Union.(4) Section 11 makes it unlawful for a union to discriminate by committing specified acts as against two classes of persons - non-members (S.11(2) and members (S.11(3). Thus, under S.11(2) it is unlawful for a trade union, in the case of person who is not a member of the union to discriminate against him(a) in the terms in which it is prepared to admit him to membership; or(b) by refusing or deliberately omitting to accept, his application for membership.Section 11(3) makes unlawful certain acts of discrimination in the case of a person who is a member of the union
"( a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or (b) by depriving him of membership, or varying the terms on which he is a member; or (c) by subjecting him to any other detriment."
(5) Since 21st December 1992 Ms Diakou has not been a member of the Union. The alleged victimisation against her by the Union in February 1995 is not one of the acts unlawful as against non-members under S.11(2).Before 21st December 1992 Ms Diakou was a member and so is able to complain of the alleged direct discrimination of subjecting her to detriment in September 1992. But, insofar as she has been subjected to any detriment since the end of 1992 (eg, in February 1995) she cannot bring her case within S.11(3)(c) because she was not a member of the Union at the date of the alleged act of victimisation. Ms Diakou has no case against the Union in respect of the alleged victimisation, because the acts which she alleges were committed against her occurred after she ceased to be a member. They are not included in the specified list of acts which it is unlawful for a union to commit by way of discrimination against a non-member.At one point in the argument Ms Diakou submitted that she could bring her case within S.11(3)(b) because she had been deprived of membership by the Union. This is the first time that she has put her case this way. When we enquired further, it appeared that Ms Diakou was saying that, although she accepted that she had resigned from the Union, and not been expelled, this was a case of "constructive deprivation": she had been driven, forced or hounded out by the actions of the Union and its officials. Even if this way of putting the case had been raised before, we do not see how, on the facts pleaded, it could be brought within S.11(3)(b). The wording of that section does not expressly admit of constructively depriving a person of membership. cf. the case of constructive dismissal where the concept of constructive dismissal is expressly incorporated into the Employment Protection (Consolidation) Act 1978, S.55(2)(c).(6) This is not quite the end of the matter, however, because S.54(1)(b) requires us to consider whether Ms Diakou could bring a case against the individual Union officials on the basis that they are to be treated as having committed acts of discrimination against her by virtue of S.32 and S.33 of the 1976 Act. In our view, those sections do not assist Ms Diakou. The starting point is S.33 which provides -
"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.
(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under S.32 (or would be so liable but for S.32(3)) shall be deemed to aid the doing of the act by the employer or principal."In our view, S.33 does not assist Ms Diakou. It is concerned with aiding unlawful acts and, for the reasons already explained, the Union has not committed any unlawful act of victimisation against Ms Diakou in respect of the period after she had ceased to be a member of the Union. S.33(1) only applies if the person, who is knowingly giving aid, is giving it to another person "to do an act made unlawful by this Act". The alleged acts of victimisation by the Union are not made unlawful by the Act, because the protection given to a non-member does not include protection from victimisation within the meaning of S.2. Ms Diakou was unable to point to any other section, save for S.2 and S.11 and, as already explained, S.2 on its own does not make anything unlawful. It simply contains a definition. Section 11 does not make unlawful what Ms Diakou alleges against the Union by way of discrimination. Section 33(2) is unhelpful for similar reasons. On the assumption that the named individual respondents are Union officials and acting as agents of the Union (this is disputed), they are only deemed to aid the doing of the act by the principal in a case where the principal is liable for the act of the agent. In that way both principal and agent may be held to be legally liable. But if the principal (in this case the Union) is not legally liable, then the agent cannot be liable. What the individual respondents have done, as individuals, does not become unlawful under Part II, because they are not within the categories of persons who are liable for racial discrimination and victimisation in the employment field. What they have done as alleged agents has not been in the context of an act for which the Union, as principal, would be legally liable.In these circumstances it is not necessary to consider the further arguments advanced by Mr Scott about the scope of the authority of a Union official to act on behalf of a union contrary to the policies of the Union: see General Aviation Services (UK) Ltd v. TGWU [1976] IRLR 224 (paragraphs 11 and 50).The minority (Ms Corby) agrees with the majority that this appeal should be dismissed but adopts a different reasoning. She does not interpret S.2 of the 1976 Act as providing a free standing definition, only activated if it comes under Part II directly. She takes the view that S.1 defines discrimination and a claim of discrimination can be made to an Industrial Tribunal if such discrimination falls under Part II. If such a claim is made, it is protected by S.2. This interpretation derives from the fact that the wording of S.2 is couched extremely widely. For instance, S.2(1)(c) says " anything done under or by reference to this Act". Also anyone who is involved in the protected acts can rely on S.2. Secondly, this construction of S.2 (unlike the construction favoured by the majority) is in line with public policy to protect complainants of discrimination and a purposive approach. The minority's view, however, goes against the decision in Nagarajan v. Agnew (supra) but that decision is persuasive, not binding. It is dependent on a dissection of the tense used in S.4(2) and assumes that S.2 is not dependent on S.1.Nevertheless, the minority considers that this appeal should be dismissed. The lay officials were acting contrary to the policies of their Union General Aviation Services (UK) Ltd v. TGWU (supra).The result is that Ms Diakou's appeal is dismissed. We should add that, during the course of the hearing Ms Diakou understandably expressed dismay at this result. Ms Diakou asked the Tribunal what she could do about it. We explained that, although we had done all we could to assist her in the presentation of her appeal, we could not act as her adviser in her dispute with the Union and its officials. There may be other avenues of complaint open to her (eg, to the Commission for Racial Equality). There may be other legal courses of action open to her eg, possible common law claims, but she should seek advice on those matters. We express no views on them. Our decision rests on the fact that she has no legal basis for bringing a claim in the Industrial Tribunal for victimisation under the 1976 Act against the Union in respect of acts committed after she ceased to be a member or against the individual Union officials whom she alleges acted on behalf of the Union.For these reasons the appeal is dismissed.