MRS O OBASA v UNIS0N [2000] UKEAT 857_98_1205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 857_98_1205Case No Appeal No. EAT/857/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS O OBASAAPPELLANTUNIS0NRESPONDENT
Before
Mr Justice Charles Mrs T A Marsland Mr J A ScoullerDate 12 May 2000
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MS I OMAMBALA (of Counsel) Instructed By: Adam Creme Director of Legal Services UNISON 1 Mabledon Place London WC1H 9AJ MR JUSTICE CHARLES : The parties to this appeal are Mrs Obasa (the Appellant) and UNISON (the Respondent). The appeal is against a decision of an Employment Tribunal sitting at London (North) which dismissed Mrs Obasa's claims against UNISON.[2]The hearing before the Employment Tribunal took place over an extended period, namely it was heard on 6, and 22 to 24 February 1997, 25 September 1997 and 3 November 1997.[3]The Extended Reasons for the decision were sent to the parties on 12 May 1998.[4]As appears from paragraphs 5 and 6 of the Extended Reasons two jurisdictional points arose for consideration by the Employment Tribunal. The first related to the time limit contained in Section 68 of the Race Relations Act 1976 and the second related to Mrs Obasa's membership of UNISON.[5]We were told by Counsel for UNISON, and accept, that the Employment Tribunal were invited to deal with these points as preliminary issues but refused to do so.[6]These points are dealt with fully in the Extended Reasons.[7]As is apparent from the length of the hearing before the Employment Tribunal, having refused to deal with the jurisdictional issues as preliminary points, the Employment Tribunal heard extensive evidence. However, they only dealt with the "merits" in one short paragraph of the Extended Reasons which is in the following terms:
" Merits 28 We have held that we do not have power to consider the Applicant's complaints for jurisdictional reasons. However, the complaints against the Respondent trade union are serious and were dealt with fully by their officers in their evidence. The report on which the Respondents' response to the Applicant's complaint was based was prepared by Mr Sullivan, who is himself black, and it is right that we should record our finding that neither Mr Sullivan nor any other officer of the Respondent union was influenced by racial or any other improper motives in dealing with the Applicant's complaint."
[8]In our judgment having regard to:(a) the course taken by the Employment Tribunal which resulted in them hearing the evidence of both sides in respect of the complaints made by Mrs Obasa,(b) the history of Mrs Obasa's litigation with her employers in respect of related matters which is referred to in the Extended Reasons, and(c) the nature of the complaints, the Employment Tribunal should have dealt with their findings on the merits more fully, notwithstanding their conclusions on the jurisdictional issues. This failure of the Employment Tribunal has given rise to one of the grounds of appeal before us, namely that:
"6.3 The Tribunal erred in law and/or failed to give adequate reasons for its conclusions in its findings in relation to the 'merits' of the Appellant's claim (see para 28 Tribunal Decision) (a) as the Appellant's complaints were of direct race discrimination, the 'motives' of the Respondent's officers were not relevant; (b) the fact that one of the relevant officers was 'himself black' was not a relevant consideration; (c) the Tribunal failed to give sufficient reasons to enable the Appellant to properly understand the basis of its findings adverse to her on the merits of her complaint."
We shall return later to this ground of appeal. The Grounds of Appeal on the Jurisdictional Issues in paragraph 6.1 of the Amended Notice of Appeal[9]On the Preliminary Hearing of this appeal Mrs Obasa was represented by Counsel, pursuant to the Employment Law Appeal Advice Scheme. It is apparent from the judgment given on that Preliminary Hearing that Counsel, on behalf of Mrs Obasa, did not advance all the points contained in Mrs Obasa's hand written Notice of Appeal and Mrs Obasa was given leave to serve an amended Notice of Appeal. That amended Notice of Appeal was served and it replaces the original hand written Notice of Appeal and identifies the grounds of appeal in paragraphs 6.1 to 6.3 thereof.[10]Paragraph 6.1 of the amended Notice of Appeal contains the following grounds of appeal which relate to the decision reached on the jurisdictional issues raised on behalf of UNISON, namely: "6.1 The Employment Tribunal erred in law and/or came to a conclusion that was perverse in holding that the Appellant was no longer a member of the Respondent Trade Union after 15 June 1995 in that:(a) on a proper construction of the rules of the Respondent Trade Union, the Appellant remained a member under r.7.1.1 and / or 7.1.2, as (i) the Respondent continued to accept her membership subscriptions (see Tribunal Decision para 15) and must therefore be taken to have continued to accept her into membership (see r.7.1.1); (ii) the Appellant intended to be absent from her employment with the London Borough of Islington for a temporary period only and the Respondent Trade Union must be taken to have permitted her to retain her membership by its conduct in continuing to accept her subscriptions (see r.7.1.2);(b) on a proper construction of the rules of the Respondent Trade Union and / or the terms of the Appellant's contract of employment with the London Borough of Islington, the Appellant remained a member of the Trade Union as she was on unpaid maternity leave at the relevant time (see r.2..3.2);(c) the Appellant's employment with the London Borough of Islington (and, therefore, her membership of the Respondent Trade Union insofar as this was conditional on the same) continued after 15 June 1995, as had been found by the Industrial Tribunal in Obasa v LB Islington , Case No. 20256, 41747/95/LN. The Tribunal and / or the Respondent in the present case (i) was bound by the finding of fact in that earlier decision; (ii) reached a perverse conclusion on the evidence before it on this issue; (iii) failed to give adequate reasons for its conclusion on this issue in the light of the evidence before it. Preliminary points on these grounds of appeal Ground 6(1)(c) – the effect of an earlier decision of an Employment Tribunal[11]From the judgment given on the Preliminary Hearing it appears that the amended Notice of Appeal was available in draft before this Tribunal. In the judgment of this Tribunal on the Preliminary Hearing the ground contained in paragraph 6.1 (c) is referred to as the third argument. As to it this Tribunal stated as follows:
"The third argument was based upon a previous Tribunal decision which is referred to in the Appellant's own notice of appeal. In a previous decision the Industrial Tribunal in relation to a complaint of constructive dismissal made by Mrs Obasa concluded, 'our finding is that the Applicant did not terminate but merely sought to withdraw herself from the workplace by applying to take advantage of the Respondent's long term maternity policy which would have kept her away until her youngest child was of an age to be left while the Applicant attended work. She stresses to us that she could not afford to terminate her employment'. On the basis of that decision, it is contended that it is arguable that this was a finding of fact that her employment had not terminated as at 15 June; that the Industrial Tribunal in the present case were bound by that finding of fact, alternatively should have explained why they were departing from such a finding. We do not regard this as an arguable point of law. It is clear it seems to us from the context in which the previous Industrial Tribunal had made their findings, that it was indicating to the Applicant that even if there had been repudiatory breaches of contract, it was not because of them that she withdrew from her employment. In other words, the Industrial Tribunal was saying that a necessary ingredient of a constructive dismissal case had not been made out. We therefore would not allow that point to be argued at a full hearing."
It follows that this Tribunal has already dealt with and dismissed the ground raised in paragraph 6.1 (c) of the Notice of Appeal.[12]We pause to comment that this earlier decision of an Employment Tribunal in proceedings between Mrs Obasa and the London Borough of Islington has been the subject of consideration in appeals by Mrs Obasa against the decisions of two other Employment Tribunals in other cases brought by her against the London Borough of Islington. Because of the overlap between them in respect of the date when Mrs Obasa ceased to be an employee of the London Borough of Islington, we directed that those appeals should be heard by the same Tribunal as heard this appeal. We heard those appeals on the day after the day on which we heard this appeal. The decision as to the order in which the appeals were to be heard was based on the availability of counsel at the time we gave our directions. Having heard full argument on the appeals in the cases between Mrs Obasa and the London Borough of Islington we have reached the same conclusion as that reached by this Tribunal on the Preliminary Hearing in this appeal as to the effect of the earlier decision of the Industrial Tribunal in the proceedings referred to in paragraph 6.1 (c) of the amended Notice of Appeal (and referred to in our judgment on those appeals as the Roose Decision). In those other appeals we have concluded that when read in its context and against the background known to both parties that earlier decision was not based upon a conclusion or finding that Mrs Obasa's contract of employment with the London Borough of Islington did not terminate on 15 June 1995.[13]It follows that the possibility that different findings might be made in proceedings between(i) Mrs Obasa and her employers, the London Borough of Islington, and(ii) Mrs Obasa and UNISON, as to when her contract of employment with the London Borough of Islington ended, has not arisen. The position and finding in both sets of proceedings is that (a) Mrs Obasa's contract of employment terminated on 15 June 1995, and (b) at all material times thereafter Mrs Obasa has not been an employee of the London Borough of Islington and the relationship between Mrs Obasa and the London Borough of Islington has been governed by the terms of the Return to Work up to Five Years after Confinement Scheme in sub-section Dab of the relevant Staff Code ("the Dab Return to Work Scheme"). Ground 6.1 (a) of the amended Notice of Appeal – the finding of fact referred to therein .[14]As appears from ground 6.1(a)(i) this finding appears in paragraph 15 of the Extended Reasons which is in the following terms:
"15. The Applicant's Union subscriptions were paid by 'check-off' and it appears that subscriptions continued to be deducted from payments of salary made to the Applicant after her notice expired. In her written closing submissions the Applicant argued that she had at no time withdrawn her consent for deductions of Union subscriptions to be made from her wages and that membership of the Union therefore continued while such deductions were made. However, as Ms Lahey pointed out in her evidence, Schedule A paragraph 3 of the Union rules provides that no subscriptions are required from members on maternity leave, so that the fact that the Applicant continued to pay subscriptions is irrelevant to the question of whether the Applicant remained a member of the Union as a person on maternity leave. If, as we have found, the effect of the Union's rules was that the Applicant ceased to be a member of the Union when her employment ended, we do not consider that her membership continued because she continued to pay Union subscriptions."
[15]Save that that paragraph refers to subscriptions continuing to be deducted from payments of salary made to the Applicant, Mrs Obasa, after her notice expired, in our judgment it does not define the period during which her subscriptions were paid by "check-off" and thus the period during which the relevant deductions were made.[16]We have seen a wage slip and an invoice relating to the last payment of salary made by the London Borough of Islington to Mrs Obasa. The invoice is dated 10 July 1995 and shows that on its face it enclosed a cheque dated 11 July 1995, which was a cheque covering the amount due to Mrs Obasa up to and including 15 June 1995. The figures and calculations included on the pay slip are not easy to follow in the absence of explanation. We did not call for this explanation because it was common ground before us that the last payment of salary by the London Borough of Islington to Mrs Obasa related to the period up to 15 June 1995.[17]It follows that no deductions by way of "check-off" were made in respect of salary paid to Mrs Obasa for any period after 15 June 1995. Indeed, she accepted that she was not paid salary (or anything else) by the London Borough of Islington in respect of any period after that date. The Finding of the Employment Tribunal on the Time Limit and the Events and Allegations in respect of which they would entertain claims by Mrs Obasa[18]These findings are in paragraphs 7 and 8 of the Extended Reasons. As appears therefrom the Employment Tribunal dismissed Mrs Obasa's complaints in so far as they related to events prior to 14 June 1995.[19]There is no appeal against this finding and dismissal. The complaints on and after 14 June 1995[20]Mrs Obasa's complaints on and after 14 June 1995 relate to the acts and omissions of UNISON in respect of a letter she wrote on that date.[21]In paragraph 21 of the Extended Reasons the Employment Tribunal find that UNISON did not receive that letter until 19 June 1995.[22]Further, in paragraph 22 of the Extended Reasons they found that it followed from that finding as to receipt of the letter of 14 June 1995 that all the acts or omissions of UNISON complained of by Mrs Obasa in relation to her letter of 14 June 1995 occurred after 15 June 1995, which is the date the Employment Tribunal decided she ceased to be a member of UNISON and is the last day of the last period in respect of which she was paid salary and any "check-off" was made. The position reached on the timing of the complaints made by Mrs Obasa that were the subject of the decision of the Employment Tribunal[23]It follows that, having regard to the points made above and in particular(i) the finding that Mrs Obasa's employment terminated on 15 June 1995,(ii) paragraphs 15, 21 and 22 of the Extended Reasons,(iii) the payslip and invoice we have seen, and(iv) the common ground before us that Mrs Obasa was paid salary up to 15 June 1995 and was not paid any salary in respect of any period thereafter, that: (a) Mrs Obasa's paid no subscriptions to UNISON in respect of the period that the acts or omissions she complained of in relation to her letter of 14 June 1995 took place, and therefore the factual basis for the ground of appeal in paragraph 6(1)(a)(i) of the Notice of Appeal does not exist, and (b) the acts and omissions Mrs Obasa complained of in relation to the letter of 14 June 1995 all took place after she had ceased to be an employee of the London Borough of Islington. The "Union Membership" issue[24]This issue was not raised by UNISON in its response to the letter from Mrs Obasa dated 14 June 1995. As appears later in this judgment, in that letter UNISON dealt with the complaints she made on their merits. This issue was raised as a jurisdictional point by the lawyers acting for UNISON before the Employment Tribunal. In our judgment those acting for UNISON acted properly and correctly in raising the issue and we only mention that it was raised in, and for the purposes of, the proceedings and not by UNISON in its original reply because this is relevant when we turn to deal with the way in which the Employment Tribunal dealt with the claims on their merits.[25]This "Union Membership" issue is dealt with by the Employment Tribunal in paragraphs 9 to 22 of the Extended Reasons. These are in the following terms:
"9. In Diakou v Islington Unison 'A' Branch [1997] ICR 121 the Employment Appeal Tribunal held that a complaint of race discrimination against a trade union under section 11(2) of the Race Relations Act 1976 can be made only in respect of acts or omissions which took place while the complainant was a member of the trade union. However, the Applicant in that case resigned her membership of the trade union. Subject to any rights which the Applicant may have had under the Islington 'return to work' scheme, the Applicant in this case resigned her employment, but not her membership of the Union. It is therefore necessary for the Tribunal to decide whether and, if so, when, the Applicant's resignation from her employment also had the effect of terminating her membership of the Union. 10. The rules in force at the time of the Applicant's complaint were as amended at the Union's 1994 Conference. Rule Q of the Rules is a definition provision, which defines a 'member' as: '…. a person falling within any of the categories of membership set out in Rule C'. Rule C.1 is headed 'Scope of Representation' and provides : '1 The Union shall seek to represent: 1.1 those employed by any body, authority, company or corporation which has a public, charitable, educational, or statutory function, including those employed in the local government service, the health services, the electricity supply industry, the gas, transport and water industries, the education services, and in the voluntary and community sectors. 1.2 those employed in such other areas of work and such other persons as may be provided for in these Rules, and in such other employment as may come within the meaning of Rule C.1 above'. Rule C.2 is headed 'Categories of Membership' and provides: '2.1 membership shall be open to any person employed in the provision of public services and in such other employment as may come within the meaning of Rule C.1 above'. Rule C.2.3 is headed 'Full Membership' and Rule 2.3.2, so far as material, provides: 'Membership shall extend to persons who have previously been members of the Union in employment within the meaning of Rule C.1 and who are currently: 1 On unpaid maternity, paternity or adoption leave from their employment. 2 On strike or locked out from their employment. 3 Unemployed, having been dismissed or made redundant from their previous employment, provided that: (a) membership under this rule may continue for a period of two years from the date of dismissal or redundancy in question; (b) …. (c) When under either (a) or (b) full membership ends at the end of the two-year period in question, the individual may continue in membership but without the right to vote or to hold office in the Un i on unless otherwise decided by the National Executive Council, and without the right to receive benefits from the Union.' Rule 7 is headed 'Ceasing to be a Member' and Rule 7.1 provides: 'Any person ceasing to be eligible for membership within Rule C.1, and who does not fall within the classes of membership set out at Rule C.2 shall automatically cease to be a member unless: 7.1.1 the National Executive Council decides otherwise; or 7.1.2 she or he intends to be absent from the employment defined in Rule C.1 for a temporary period only, in which case she or he may be allowed by decision of her or his branch to retain membership. 11. The Tribunal heard evidence from Sheila Lahey, who is the Respondents' Rules and Constitution Officer. Ms Lahey gave evidence primarily in relation to the handling of the Applicant's complaint, but she also gave evidence to the effect that under the terms of the Union's rules the Applicant had ceased to be a member of the Union by the time any relevant act or omission occurred. Ms Omambala, in her closing submissions, invited us to accept that evidence in view of Ms Lahey's expertise in constitutional matters. 12. Although the proper construction of the Union rules is a matter of law, and not, of fact, we have nevertheless come to the conclusion that Mr (sic) Lahey is correct in her view that, in those cases where a member ceases to be employed by a qualifying employer as a result of the member's resignation, membership of the Union ceases at the same time as the employment ends. Rule Q defines a 'member' as a person falling within any of the categories of membership set out in Rule C, so that a person who ceases to be within one of those categories ceases to satisfy the definition. Furthermore, Rule 7 provides that membership is to cease automatically once a person ceases to be eligible for membership and unless cessation of membership is co-terminous with the cessation of employment it is impossible to identify any moment in time at which a member who resigns his or her employment ceases to be a member of the Union. Rule C.2.3.3 provides for continuation of membership in the case of members who have been dismissed, (which would allow such members to continue to be represented by the Union after the dismissal has taken effect), but, in the case of members who resign their employment, we consider that Union membership ends simultaneously with the relevant employment. 13. We have also concluded that the Applicant did not remain a member of the Union after her resignation by virtue of Rule 2.3.2.1. The Applicant has taken advantage of a London Borough of Islington Scheme entitling mothers to return to work up to 5 years after the birth of their child. The relevant provision in the London Borough of Islington's 'Guide to Maternity and Parenthood Scheme' is as follows: 'This scheme is for permanent staff who have not taken maternity leave because they do not want to return to work until their child is older. It is also for women who have taken maternity leave and return to work, then subsequently resign to look after their children until school age. In this case you must have returned to work for at least three months to keep your Occupational Council Maternity Pay. You have the right to a job with the Council any time up to the child's fifth birthday or when they start school, providing you have not had another paid join (sic) in that time. You must give the department at least 12 months notice, in writing, of your intention to return to work. You will be able to come back to a similar job on the same grade. If it is not possible to find you a job in your original department it will be necessary for your Chief Officer to find you a job in another department or a temporary job until more permanent arrangements can be made. You may also apply to return to part-time work or job share.' 14 We take the view that the term 'maternity leave' in Rule 2.3.2.1 of the Union Rules does not encompass the London Borough of Islington's scheme. The rule extends membership of the Union to those on 'unpaid maternity, paternity or adoption leave', each of which is normally for a period of weeks or, at most, months. The Islington scheme does not entitle a former employee to return to her former job, but to a 'similar job on the same grade'. We do not consider that a scheme under which an employee has rights to return to work for a period of up to five years can be considered as a 'maternity leave' scheme in the sense in which that term is generally understood and, indeed, it is clear from the terms of the scheme itself that it is intended as an alternative, or addition, to the ordinary maternity leave arrangements. We therefore do not consider that the Applicant remained a member of her Union because she intended to return to work within five years of her resignation under the provisions of the scheme. 15. The Applicant's Union subscriptions were paid by 'check-off' and it appears that subscriptions continued to be deducted from payments of salary made to the Applicant after her notice expired. In her written closing submissions the Applicant argued that she had at no time withdrawn her consent for deductions of Union subscriptions to be made from her wages and that membership of the Union therefore continued while such deductions were made. However, as Ms Lahey pointed out in her evidence, Schedule A paragraph 3 of the Union rules provides that no subscriptions are required from members on maternity leave, so that the fact that the Applicant continued to pay subscriptions is irrelevant to the question of whether the Applicant remained a member of the Union as a person on maternity leave. If, as we have found, the effect of the Union's rules was that the Applicant ceased to be a member of the Union when her employment ended, we do not consider that her membership continued because she continued to pay Union subscriptions. 16. It therefore becomes necessary to determine the point in time at which the Applicant's employment ceased, since for the reasons set out above, we consider that that is also the point in time at which the Applicant's membership of the Respondent trade union ceased. The evidence in relation to this aspect of the case was primarily documentary. 17. The Applicant's resignation was effected by a letter dated 11 May 1995 addressed to her Unit Manager. The relevant passage is as follows: 'Overall Julian, due to Islington refusal to sort out my salary and mainly because of my difficulties in arranging for childcare for my children I am writing according to Islington Council's Maternity and Parenthood Scheme policy to resign from my post until my son Daniel's fifth birthday on the 6 th Oct 97 as is my entitlement'. On 9 June 1995 Jean Dolphin, the London Borough of Islington's Director of Neighbourhood Services, replied to that letter as follows: 'Dear Ms Obasa, I am writing in response to your letter of 11.5.95, to confirm that your resignation is accepted in accordance with the conditions detailed in Sub-section Dab of the Staff Code (copy attached). I would be grateful if you could submit a copy of the Birth Certificate of your son, Daniel, within the next fourteen days of the date of this letter. Please note that, in accordance with Sub-Section Dab there is no entitlement for you to return to your substantive post. The Council is prepared to waive the requirement for you to report for duty during your contractual notice period. You will be paid for your notice period, i.e. for one month from 15.5.96 (the date your letter was received by the Department) to 15.6.95. The necessary adjustment will be made as soon as possible'. 18. On the basis of that evidence, we are satisfied that the Applicant's employment, and therefore her membership of the Union, terminated on 15 June 1995. It is clear from the letter of 9 June that the Applicant's letter of 11 May was treated as giving one month's notice from the date when it was received. The Applicant was not required to work during her notice period, but the Applicant's employers did not take any steps to terminate her employment before the expiry of the notice period. Although the Applicant continue to receive payments of salary after the expiry of her notice, the wages calculation sheet shows the Applicant's leaving date as 15 May 1995 and it appears that she was, in fact, paid up to that date. We pause to comment that we find the last sentence of paragraph 18 of the Extended Reasons unclear and internally inconsistent. We repeat that the payslip and invoice we have seen indicate (as was common ground before us) that Mrs Obasa's wages or salary were calculated and paid in respect of the period ending on 15 June 1995 which included the period of one month's notice from the date that Mrs Obasa's letter of 11 May 1995 was received. 19. It therefore becomes necessary to consider whether any of the events founding the Applicant's complaints took place, or are to be treated as having taken place, on or before 15 June 1995. Section 68(7) of the Race Relations Act 1976 provides: 'For the purposes of this section - (a) …. (b) any act extending over a period shall be treated as done at the end of the period; and (c) a deliberate omission shall be treated as done when the person in question decided upon it; and in the absence of evidence establishing the contrary a person shall be taken for the purposes of this section to decide upon an omission when he does an act inconsistent with doing the omitted act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was done'. 20. The Applicant's letter of 14 June was sent recorded delivery. It appears that there was a telephone conversation between the Applicant and Ms Lahey on 3 July and on that date Ms Lahey wrote to the Applicant as follows: 'Dear Mrs Obasa RE: MEMBER'S COMPLAINT Following our telephone conversation held on 3rd July 1995, I write to inform you that your letter of complaint, sent recorded delivery and received in this office and signed for on 19th June, 1995 has been lost. Enclosed is a copy of that receipt. 1 write to confirm that we have agreed to meet on Monday, 10th July, at 10.00 am at Mabledon Place, where you will hand me a copy of the relevant documents, which I will then copy and hand back to you. … On behalf of UNISON please accept my apologies for the loss of your written complaint and any inconvenience and stress that this has caused'. In her evidence Ms Lahey confirmed that the Applicant's letter had been received on 19 June. 21. In her written closing submissions, the Applicant contended that the Tribunal should find that her letter was received by the Respondents on the day after it was written, that is, 15 June. However, we accept the evidence of Ms Lahey and find that the letter was not received until 19 June. The evidence of the receipt which was apparently enclosed with the letter of 3 July does not appear to have been challenged at the time and there is no evidence that the letter arrived at the Respondents' offices any earlier than 19 June. We therefore find that is the date on which the letter of 14 June arrived. 22. It follows from that finding that all the acts or omissions the Respondents complained of by the Applicant in relation to her letter of 14 June occurred after she ceased to be a member of the Union. Even on the basis that the Respondents decided not to reply to the Applicant's letter because of some ulterior motive, they cannot have made that decision before the letter was received. Similarly, any victimisation by the giving of false evidence in the letter of 11 September 1995 and the assertion of incorrect facts contained in that. letter (the assertion that the Applicant had left the employment of the London Borough of Islington) must have taken place after 19 June. Accordingly, we hold that we have no jurisdiction to consider any of the Applicant's complaints arising out of the Respondents' response to the letter of 14 June."
[26]Having regard to the findings made by the Employment Tribunal on timing and the position reached as a result thereof set out in paragraph 23 above (and subject to the point based on Coote v Granada Ltd (No 2) [1999] ICR 942 referred to later in this judgment) the "Union Membership" issue is a matter of construction and application of UNISON's Rules.[27]We agree with the submission made on behalf of UNISON that in construing these Rules we should apply the approach taken to the construction of contracts and that the Employment Tribunal did not err in law in their approach to the construction of the Rules. As to this last point we note that the Employment Tribunal resisted the request, or temptation, to decide the points on the basis of Miss Lahey's evidence and correctly treated the issue as one of law.[28]We agree with the conclusion and reasoning of the Employment Tribunal in paragraph 14 of the Extended Reasons that "maternity leave" in Rule 2.3.2.1 of the Rules does not encompass the Dab Return to Work Scheme (referred to paragraph 13 of the Extended Reasons as the "Guide to Maternity and Parenthood Scheme") and therefore that Mrs Obasa did not remain a member of UNISON by virtue of Rule 2.3.2.1.[29]Additionally in our judgment Mrs Obasa could not rely on Rule 7.1.2 to assert that she remained a member because she intended to be absent from employment only for a temporary period because even if absence under the Dab Return to Work Scheme qualifies (and, for the purpose of this point, we shall assume that it does) there was no decision by her branch that she be allowed to retain membership.[30]However, in respect of this issue we do not agree with submissions made on behalf of UNISON that such a decision has to be a formal one, or has to result from an express request that a person be allowed to retain membership. It seems to us that such formality would not reflect the manner in which UNISON (and other Unions) and their members conduct their day to day affairs and, in our judgment, such a decision would, and should, readily be implied from conduct that was consistent with the person continuing to be treated as a member. But, in our judgment, in Mrs Obasa's case there was no such conduct.[31]As we have pointed out no payments of subscription were made for the period after 15 June 1995 and no direct communication between Mrs Obasa and her branch was relied on by her. Further in our judgment(i) the only relevant communication from UNISON that took place after receipt of Mrs Obasa's letter dated 14 June 1995 is the letter from Allan Taylor (Assistant General Secretary) dated 11 September 1995 referred to below, which was signed by Sheila Lahey on his behalf (and we understand from the submissions made to us, and the written submission made to the Employment Tribunal, was probably also written by her), and(ii) this letter does not found an argument that Mrs Obasa was allowed to retain membership during the period (or any part of the period) that she was, or would be, absent and entitled to serve notice under the Dab Return to Work Scheme of her intention to return to work.[32]In the Extended Reasons the Employment Tribunal deal with Rule C2.3.3 on the basis that Mrs Obasa resigned and was not dismissed. On the facts we agree that this is what happened. Further, in our judgment, the point that Mrs Obasa resigned and was not dismissed and the points made in paragraph 34 hereof found the conclusion that Mrs Obasa did not remain a member of UNISON after 15 June 1995 either because(i) she had been dismissed, or because(ii) she was claiming that she had been dismissed.[33]We add that in our judgment a flexible construction and approach would, and should, both generally and in this case be given, and taken, to Rule C2.3.3 alone, or together with Rule7.1.1 (and possibly7.1.2 particularly when a dismissed employee is claiming, or might claim, reinstatement or reengagement) to reach the result that a person remained a member and thus entitled to receive and be given assistance from UNISON as a member in the situation (which is not uncommon) where(i) the employee is maintaining that he was constructively dismissed and the employer is claiming that he resigned, and(ii) the employee seeks and obtains help from UNISON in respect of that dispute.[34]Here however, in our judgment such a flexible construction and approach does not lead to the result that Mrs Obasa remained a member of UNISON because:(a) Mrs Obasa did not assert to UNISON by her letter dated 14 June 1995 that she had been dismissed. Indeed she did not make that claim in proceedings number 20256/95 referred to in paragraph 6(1)(c) of the Notice of Appeal which were commenced on 4 June 1995 and in which she makes claims of racial discrimination and victimisation. She made her claim for unfair dismissal in the proceedings number 41747/95 which are also referred to in paragraph 6(1)(c) of the Notice of Appeal, which were commenced on 13 July 1995 and which were dealt with by the Employment Tribunal in 1996 together with the earlier proceedings. These proceedings are not referred to in the Extended Reasons but, as we understand the position, the Employment Tribunal were aware of them,(b) it was not a part of Mrs Obasa's complaint that after she had commenced those proceedings for unfair dismissal she informed UNISON she had done so and sought their assistance in respect of them,(c) as the Employment Tribunal found in this case, in our judgment a natural and correct reading of Mrs Obasa's letter dated 11 May 1995 together with the Dab Return to Work Scheme is that she resigned and was not constructively dismissed albeit that she felt that she had no option but to elect to take up her entitlements under the Dab Return to Work Scheme, and(d) the complaints in her letter dated 14 June 1995 focussed on the issue relating to her qualifications which was (amongst other things) dealt with in the decision of the Employment Tribunal chaired by Mrs Calvert QC which we think must have been the decision of the Employment Tribunal that she states was enclosed with her letter (that decision was in favour of Mrs Obasa but was later overturned on appeal).[35]It follows that for the reasons set out above (which contain some different and additional reasons to those set out by the Employment Tribunal) we agree with the conclusion of the Employment Tribunal on the "Union Membership" issue and therefore in our judgment the grounds of appeal set out in paragraphs 6.1 (a) and (b) of the Grounds of Appeal fail. The decision in Coote v Granada Ltd (No 2) [1999] ICR 942[36]Having regard to the fact that Mrs Obasa was a litigant in person and notwithstanding the fact that the Coote (No 2) case was decided after the decision of the Employment Tribunal in this case, on the directions hearing we invited counsel for UNISON to consider whether this decision in the Coote (No 2) case founded an argument either that(a) the decision in Diakou v Unison [1997] ICR 121 is no longer good law, and/or(b) whether as a matter of construction s. 11 Race Relations Act 1976 applied notwithstanding that Mrs Obasa was no longer a member of UNISON at the relevant date.[37]We are grateful to counsel for UNISON for dealing with these points. We agree that having regard to(i) the wording of s. 11 Race Relations Act 1976 when compared with s. 6(2) Sex Discrimination Act 1975 (and s. 4(2) Race Relations Act 1976),(ii) the reasoning in the Diakou case, and(iii) the Coote (No 2) case and the reasoning and decision of the Court of Appeal in The Post Office v Adekeye [1997] ICR 110 that the Coote (No 2) case does not found either of the arguments mentioned in paragraph 36 hereof. It follows that UNISON are entitled to rely on the Diakou case and that the "Union Membership" issue provides UNISON with a defence to Mrs Obasa's claims under the Race Relations Act 1976.[38]We add that even if we had not reached this conclusion we would not have allowed Mrs Obasa to rely on the Coote (No 2) case on this appeal because to do so(a) would be contrary to the principle of legal certainty and finality to allow past transactions to be re-opened, limitation periods circumvented or time limits for appeal to be extended simply because the existing law at the relevant time had not yet been explained or properly understood (see for example Biggs v Somerset County Council [1996] ICR 364 at 374D), and(b) would not accord with the general approach to allowing new points to be raised on appeal set out in Jones v Burdett Coutts School [1999] ICR 38 . The Ground of Appeal in paragraph 6.2 of the Amended Notice of Appeal[39]This is in the following terms: 6.2 The Tribunal failed to properly consider and / or to give adequate reasons for its refusal of the Appellant's claim of sex discrimination. Although the Appellant (who was not legally qualified and was unrepresented) had wrongly referred to the provisions of the 'Employment Protection Act 1978', it was clear from the way in which her case was put that her complaint was one of discrimination for reasons relating to her pregnancy and was, therefore, one of unlawful sex discrimination in respect of which a claim could be pursued against the Respondent Trade Union under s.12 Sex Discrimination Act 1975."[40]The Employment Tribunal mention and deal with the claim expressed to be under the Employment Protection Act 1978 in paragraph 27 of the Extended Reasons, which is in the following terms: The Applicant also claims against the Respondents under the "Employment Protection Act 1978" in respect of having "aided my employer in refusing for reason connected with pregnancy to resolve my salary issues". However, liability for actions connected with pregnancy is confined to employers and the Respondents therefore cannot be liable to the Applicant in respect of this complaint.[41]We do not agree that it was clear from the way in which Mrs Obasa put her claim that she was making a claim under s. 12 Sex Discrimination Act 1975 against UNISON and in our judgment the Employment Tribunal did not err in law in the manner asserted in this ground or in not appreciating that Mrs Obasa was making a claim under the Sex Discrimination Act against UNISON (see by analogy Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 in particular paragraphs 14 to 17 and paragraph 20 of the judgment and Chapman v Simon [1994] IRLR 124 ). We add in this context that:(a) it is the alleged reasons for, or causes of, the acts or omissions of UNISON rather that the alleged reasons for, or causes of, the actions of Mrs Obasa's employers in relation to salary issues that are relevant,(b) Mrs Obasa asserted to us (in a way that we did not follow) that although the Dab Return to Work Scheme gave her as a woman who had been pregnant an advantage or right which she had taken up, she could nonetheless base a claim under the Sex Discrimination Act on it because it related only to women who had been pregnant and was therefore discriminatory and had caused her to suffer damage; but we did not understand her to be asserting that such claim (and do not see how any such claim) would be against UNISON who are not parties to the Dab Return to Work Scheme, and(c) further having regard to (i) the correspondence referred to below between Mrs Obasa and UNISON, (ii) the fact that this shows that the background to Mrs Obasa's complaints and claim against UNISON related to matters which occurred before she decided to take up her rights under the Dab Return to Work Scheme, and (iii) the point that the claim against UNISON relates only to the manner in which UNISON dealt with her complaint contained in her letter dated 14 June 1995 from the receipt of that letter (19 June 1995), we do not follow how her claim against UNISON is based on the fact that some time earlier she had been pregnant, or related to her pregnancy in connection with (i) her absences from work, (ii) her qualifications, or other matters affecting her salary, (iii) the disciplinary action taken against her, (iv) her job applications, (v) the Dab Return to Work Scheme or (vi) otherwise howsoever. The Ground of Appeal in paragraph 6.3 of the Amended Notice of Appeal[42]This is set out in paragraph 8 of this judgment and relates to paragraph 28 of the Extended Reasons which is set out in paragraph 7 of this judgment. Given our conclusions on the other grounds of appeal this ground is academic. We shall however deal with it.[43]We accept that criticism can be made of the way in which the Employment Tribunal dealt with the merits of Mrs Obasa's claims (see paragraph 8 of this judgment) and that they should have dealt with them more fully. But it does not follow that in the circumstances of this case the Employment Tribunal erred in law in the way in which they dealt with the merits. Whether they erred in law in this respect has to be considered having regard to the approach taken by this Tribunal to the consideration of extended reasons.[44]As to this, reference is often made to the decision in Meek v City of Birmingham District Council [1987] IRLR 250 , and in particular to the following passage, at p.251, from the leading judgment of Bingham LJ with which Sir John Donaldson MR and Ralph Gibson LJ agreed, namely:
'It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this court to see whether any question of law arises; …'." This means that we should read the Extended Reasons generously, and with the background knowledge of the parties. This Tribunal has also been directed not to use a fine toothcomb in considering extended reasons (see for example Hollister v National Farmers'
Union [1979] ICR 542 at 552H to 553D) from which it follows that we should not isolate individual phrases or paragraphs but should read the Extended Reasons as a whole. It is also important that in considering the Extended Reasons we should have regard to and remember the issues that were put before the Employment Tribunal. This is shown for example by High Table v Horst [1998] ICR 409 at page 420 E to F, where after citing from the Meek case, Peter Gibson LJ says this:
"However, in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises, viz. in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But, whilst it must consider all that is relevant, it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points … ."
[45]We have adopted this approach to the consideration of the way in which the Employment Tribunal dealt with the merits of Mrs Obasa's claims in the Extended Reasons. The relevant background correspondence[46]This is contained in two letters. They are in the following terms:(1) Mrs Obasa's letter to UNISON dated 14 June 1995 "Dear Sir I am writing to complain in regard to the lack of action / support I received from my Branch Jane Doolan, Brian Gardner and the District Office Peter Berry and Will O'Soullivan. I am a paid-up member of UNISON. enclosed is the: (1) The Industrial Tribunal's decision.(2) My view point supporting that my qualifications are appropriate to the post of Assistant Superintendent I am appointed to.(3) The post advertisement.(4) Appointment letter.(5) Job description for my post Asst Superintendent.(6) My most recent CV.(7) All training certificate. I am writing to seek advice as to my qualifications acceptability in accordance with paragraph 10 of the scheme of condition of service for residential staff, to date my branch has not helped. I will look forward to hearing from you soon. Yours faithfully O. Obasa Please note that before my marriage my name was Olakotan. Thanks" (2) UNISON's substantive response thereto dated 11 September 1995 "Dear Mrs Obasa Further to my letter dated the 7 th July 1995, I write to advise you that I have now received a report from the Greater London Region concerning your complaint against UNISON representation. Your involvement with the Islington Branch and the region has centred around two issues: 1. Whether or not you was (sic) appointed on the right spinal point; 2. The Council's threatened disciplinary action against you. This disciplinary action was, because after being appointed to the job and signing the contract you considered that you had the qualification to be paid a higher salary spinal point. The Council did not agree with your interpretation of the Conditions of Service and they believed that you had decided not to carry (sic) all the duties of the post and as a consequence of this, were intending to take disciplinary action against you for not carrying out your full and proper duties. The Council never proceeded with this line of disciplinary action on account of your maternity leave, sickness and the industrial tribunal case. Mr Sullivan took over your case from Peter Berry, who advised him of the fact that there was a dispute between yourself and the Council as to whether you had been appointed on the right spinal point and that it was likely that some form of disciplinary action might take place. It is understood that you never invoked any of the Council's procedures in relation to resolving this particular matter. Mr Berry had been asked for advice because of the Council's reluctance to deal with the matter through the Joint Secretaries' mechanism. He advised Mr Sullivan that you had taken out an industrial tribunal (sic) and stated that the majority of the matters being raised in the tribunal application had never been brought to the branch. The branch had taken the view that their lack of opportunity in trying to resolve these issues and the fact that they were not consulted about submitting a tribunal application, along with the fact that you had engaged a firm of solicitors, resulted in their not being prepared to support you in pursuing the tribunal application. Mr Sullivan became involved with your case in October 1994, when you rang him and informed him that an industrial tribunal was taking place and requesting that you be represented by the union in the event of the Council pursuing the disciplinary action. Mr Sullivan advised you that he would ask the branch whether or not they would arrange representation for you in the event of your being disciplined and that he would seek clarification from the Council as to whether they intended to pursue disciplinary action. In the course of obtaining that clarification, the Council asked Mr Sullivan to approach you to see if you were prepared to make a settlement with them. This was after the result of the industrial tribunal was known. After discussion with the Council about the nature of the offer, Mr Sullivan contacted you and put to you the offer that the Council was making. The offer was as follows:- That the Council considered that employment relationships between themselves and you had completely broken down and on that basis they were prepared to offer a severance payment of £20,000, drop the disciplinary hearing, and not proceed to an employment appeals tribunal as they believed that the tribunal had acted outside the law in its findings that they had breached the Race Discrimination Act for not seeking the advice of the Joint Secretaries of the Provisional Council about the status of the qualifications that you had. You rejected their offer on the basis that it was not enough money and that you had already spent a considerable amount on legal fees in order to pursue the industrial tribunal. Mr Sullivan stated to you that he was prepared to put your view back to the Council, but did not feel in a position to negotiate with the Council on your behalf given that the union had no involvement in the original industrial tribunal case and, that you could not be clear on what basis you would be prepared to settle with the Council. You believed that you would be able to stay away from work for another considerable period of time on the basis of the maternity conditions. Mr Sullivan's view of the Islington conditions of service was that in fact these did not apply to you, but that you would have to return to work in the near future. Mr Sullivan relayed your views back to the Council and also stated to them that if they wished to reach a settlement with you about the industrial tribunal case he felt that it was more appropriate that this was done directly. The Council believed that the tribunal acted outside the law in finding against them on the grounds of racial discrimination for not seeking the advice of the Joint Secretaries in assessing whether your qualifications were appropriate in a particular job. Mr Sullivan's last involvement with you was to write formally to the branch stating that they needed to consider whether or not they would represent you if the Council proceeded with the disciplinary action against you. His latest information was that you had left the Council stating that you had a right to return within five years of the maternity provisions. The Council are proceeding to an employment appeals tribunal in an attempt to overturn the findings of the industrial tribunal. Given that you have now left the London Borough of Islington, the Joint Secretaries cannot be involved in trying to resolve your grievance over grading. I have been advised that Mr Berry did have an agreement with the Council that they would approach the Joint Secretaries on the issue of the grading. However, you rejected this course of action and decided the issue was more to do with racial discrimination and decided to proceed with the assistance of your own solicitor. On the basis of the report received I do not believe that the union, either at regional or branch level, were in a position to provide more support given your own interpretation of events and your decision to pursue your case independently and without consultation with the union. I am satisfied that the complaint against UNISON is not founded and I intend to take no further action. Yours sincerely."[47]This correspondence shows the nature and extent of Mrs Obasa'a complaint and the way in which it was responded to by UNISON. Given the length of the hearing, it would appear that the oral evidence went outside the ambit of this complaint and the way in which it was dealt with after receipt of the letter dated 14 June 1995. As we understand it Mrs Obasa gave extensive evidence in respect of events prior to 1995 which was considered as background (see paragraphs 7 and 8 of the Extended Reasons).[48]In considering this ground of appeal it has to be remembered that there is no appeal against the decision of the Employment Tribunal to dismiss Mrs Obasa's complaints so far as they related to events prior to 14 June 1995 which accorded with Mrs Obasa's stance or concession before the Employment Tribunal (see paragraphs 7 and 8 of the Extended Reasons and paragraphs 18 and 19 hereof). It follows that the adequacy of the Extended Reasons has to be considered in respect of the claims based on events after 14 June 1995 and thus having regard to the terms of the correspondence and in particular the response of UNISON in, and as indicated by, the letter of 11 September 1995.[49]Additionally, in considering the adequacy of the Extended Reasons in our judgment in the circumstances of this case it is permissible to have regard to the written submissions of the parties, in which it is to be noted that it is Mrs Obasa who makes the point that Mr Sullivan is black. On this appeal she now asserts that this was not a relevant consideration. We agree but it seems that this represents a change in position for her and in our judgment(a) the reference to this fact by the Employment Tribunal (i) probably stemmed from Mrs Obasa's reference to it, and (ii) in context is not a reason being advanced by the Employment Tribunal but a statement of fact leading to their finding, and therefore(b) in all the circumstances of this case the reference to this fact in paragraph 28 of the Extended Reasons does not amount to an error of law.[50]Further in our judgment when read in the context of the correspondence and the written submissions the reference in paragraph 28 of the Extended Reasons to "motives" should not be read as a reference to subjective intention or motive. Rather in our judgment when read in that context a fair reading of the finding in paragraph 28 of the Extended Reasons as to the way in which UNISON dealt with Mrs Obasa's complaint is that having regard to the oral evidence (both as to the background and the acts or omissions of UNISON after 19 June 1995) the Employment Tribunal are recording that their conclusion is that they did not find (by inference or otherwise) that Mrs Obasa was treated differently on racial grounds, or on the grounds that she had done, or intended to do, a protected act (see for example paragraphs 1, 46, 51 of UNISON's written submissions to the Employment Tribunal).[51]In our judgment that reading of the finding in paragraph 28 of the Extended Reasons adequately explains in the circumstances of this case why Mrs Obasa's claims would have been dismissed if the Employment Tribunal had not decided the jurisdictional issues against her and dismissed her claims on that basis. Overall Conclusion[52]For the reasons we have given this appeal is dismissed.