Ayobiojo v Unison [1999] UKEAT 1330_98_1003

EAT
Ayobiojo v Unison
[1999] UKEAT 1330_98_1003 · 1999-03-10

JUDGE PETER CLARK :

The Appellant was formerly employed by the London Borough of Lambeth. During that employment he was a member of the Trade Union, NALGO. On 9 November 1990 Lambeth dismissed him. Thereupon he ceased paying subscriptions to NALGO. He was and remains unemployed.On 1 July 1993 the Trade Unions NALGO, NUPE and COHSE combined into one public service union, UNISON. The new union had its own rule book.On 16 September 1993, the Appellant commenced proceedings against UNISON, claiming that he had been subject to racial discrimination by that Union.That complaint came on for hearing on 17 June 1996. A preliminary issue arose as to limitation.On 18 June, during cross-examination by Counsel for UNISON, the Appellant was asked whether he had, in accordance with NALGO's rules, registered as an unemployed member and paid his subscription following his dismissal by Lambeth. He said that he had not done so.On that same day, 18 June 1996, the Appellant wrote to UNISON seeking assistance in connection with his claim against UNISON and his claim against Lambeth.The following day he wrote again, enclosing a cheque for £50 to cover his arrears of contributions and sought to, as it was put, 'rejoin' UNISON.UNISON replied on 26 June 1996, referring to his answers in cross-examination and pointing out that his membership of NALGO had ceased on 8 November 1990. Accordingly UNISON was unable to assist. Further correspondence followed and eventually the Appellant issued a further Originating Application on 25 September 1996 claiming racial discrimination and victimisation.That matter came before an Employment Tribunal sitting at London (North) on 2 September 1998. The claims were dismissed by a decision with Extended Reasons dated 15 September 1998. Against that decision he now appeals.First the basis for the Tribunal's decision.The Tribunal directed themselves as to the provisions of ss.2 and 11 of the Race Relations Act 1976 . Section 11 places trade unions in the same position as employers for the purposes of the Act. In particular, it is unlawful for a trade union to discriminate against a person who is not a member in the terms on which it is prepared to admit him to membership or by refusing or deliberately omitting to accept his application for membership.They considered the relevant rules for both NALGO and UNISON and concluded that by allowing his membership of NALGO to lapse he was not entitled to membership of UNISON. He was treated no differently from any other Applicant for membership. Neither his race nor his previous complaint to the Employment Tribunal (the protected act) had anything to do with UNISON's refusal to admit him to membership. The claim failed.In this appeal Mr Ayobiojo has focused his submissions on these points:First he argues that he is entitled to rely on rule 14(A) of the NALGO rules which provides:
"A person who ceases to be an officer or a member, as defined in rule 2 of these rules shall thereupon cease to be a member of the association but he or she should be eligible to receive the support of the association in respect of any cause or matter affecting her or his employment which arose while he or she was a member."
He submits that that obligation must follow NALGO into UNISON. In our judgment it does not. The UNISON rules apply and he has never been a member of UNISON.Secondly, he relies on rule K of the UNISON rules, dealing with legal assistance and in particular paragraph 2 which sets out the qualifications for legal assistance in these terms:2. The following shall apply:(a) membership or at least 13 weeks prior to the member knowing that she or he has need of assistance;(b) no arrears of contribution;(c) in other exceptional cases the National Executive Council has absolute discretion to consider whether or not to entertain an application for legal advice or assistance."Mr Ayobiojo argues that before being turned down for legal advice or assistance, the matter should have gone to the NEC in his case. We disagree. It seems to us that the exceptional cases referred to in paragraph 2(c) of rule K are dealing with members who do not fall within paragraph 2(a) or (b). It does not apply to non-members of the Union.Accordingly, we reject both his submissions.In our judgment the Tribunal was entitled to concluded that his real complaint, that he was not admitted to membership of UNISON under s11(2)(b) of the Race Relations Act , fails on the ground that such refusal was not less favourable treatment on the grounds of his race, nor was it caused by the protected act such as to amount to victimisation under s.2 of the Act.In these circumstances, the appeal is dismissed.