DR J LYNN v UNISON [2000] UKEAT 875_97_0210

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 875_97_0210Case No Appeal Nos. EAT/875/97 & EAT/1244/97Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR J LYNNAPPELLANTUNISONRESPONDENT
Before
Mr Justice MorisonLord Davies of CoityDate 2 October 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR P EPSTEIN (of Counsel) Legal Services UNISON 1 Mabledon Place London WC1H 9AJ MR JUSTICE MORISON (PRESIDENT) : There is before the EAT both an appeal from a decision of an Employment Tribunal and an Originating Application invoking the EAT's original jurisdiction under section 176(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 .[2]The background to the dispute between the parties may be shortly stated. Dr Lynn is a schoolteacher. At the material time he was employed by the London Borough of Newham as a Science Teacher at Rokeby School. During his employment he experienced difficulties with his employers. The nature of the problem is irrelevant to the issues which we must determine. Because of this dispute, he sought to join Unison so that he could have the benefit of their support in his dispute with the Council. Unison is a Trade Union whose membership comes from the public sector. Since he was a Local Government employee, Dr Lynn turned to them, rather than to a teaching trade union such as the NUT. At the end of April 1996, Unison sent him a membership card and an information pack. He maintains that he was informed by telephone that he was a member of the Newham Branch of the Union, whose Branch secretary was Ms Irene Stacey. The Union records show that he was regarded as a member as from 15 April 1996 but that he subsequently ceased membership at the end of April at the very time he was sent his membership card, for which he had had to ask the Union. Towards the end of June 1996 Dr Lynn received a letter from the Union telling him that he was no longer a member as Unison did not represent teachers.[3]Accordingly, Dr Lynn commenced proceedings in an Industrial Tribunal alleging that he had been denied the right to join a Trade Union of his choice. He complained that he had been wrongfully expelled from Unison and on 9 August 1996 presented a formal complaint under section 174 of the 1992 Act [IT 4969/96]. The Union informed the Tribunal that it intended to resist the proceedings and contended that Dr Lynn was excluded or expelled from the Union "as he does not satisfy an enforceable membership requirement within s 174 [of the Act]". The matter was scheduled for hearing on 15 November 1996, but the day before, the Union wrote to the Tribunal as follows:
"Following investigation of the matter it has come to light that the Applicant was admitted into membership of Unison. Due to a genuine error a decision was made that Dr Lynn could not continue in membership. That decision was not deliberate but was taken in consequence of a misunderstanding. In these circumstances I have written to Dr Lynn ... From the letter you will note that Unison, in addition to admitting into membership Dr Lynn Unison is offering an apology for the misunderstanding. Unison is, therefore, admitting liability."
[4]Dr Lynn complains, with justification, that he was not consulted about vacating the date for the hearing. But, at his instigation, a further date was fixed for 7 January 1997. On that occasion the parties entered into a compromise agreement. Although the Tribunal did not initially correctly record the order, in fact the parties agreed that there should be a declaration that he had been unlawfully excluded from membership of the Union and other terms were agreed.[5]It is clear that Dr Lynn settled the claim on the understanding that he had been restored to membership as from 14 November. In fact, Dr Lynn received information which showed that he had become a member of "Unison National" c/o Membership Records Department at the Union's headquarters in Mabledon Place WC1. He was suspicious about his status and believed that the Union had fudged his membership. What he wanted and expected was to resume his membership of the Newham Branch. That Branch has a normal Branch structure which enables members to become unpaid officers, such as Branch Secretary or Treasurer; whereas the 'National Branch' was either not a Branch at all or was one which did not afford him any such opportunity.[6]Accordingly, Dr Lynn took two steps. In the first place he commenced fresh proceedings in the Employment Tribunal [4 April 1997 IT 2302196/97] and, later, on 7 July 1997, made an application directly to the EAT under section 176(2). That subsection reads:
"An individual whose complaint [of unlawful exclusion or expulsion from a Trade Union] has been held to be well-founded may make an application for an award of compensation to be paid to him by the union. The application shall be made to an industrial tribunal if when it is made the applicant has been admitted or readmitted to the union, and otherwise to the Employment Appeal Tribunal."
[7]Inappropriately, in our view, the Union made an interlocutory application to have the complaint to the IT dismissed on the grounds that it was frivolous or vexatious. That application was heard by the tribunal on 24 July 1996, and by a written decision entered in the Register on 23 September 1997, the Employment Tribunal struck out Dr Lynn's complaint and all claims made in the Originating Application of 4 April 1997. The Tribunal heard some evidence from both parties. We have some doubt whether this was a proper course for the Tribunal to follow since applications to strike out should only be considered where it is plain from the face of the application that it lacks merit. What the tribunal did was to hold a trial without any of the formal steps, including disclosure of documents, having occurred. Dr Lynn appealed against that decision, complaining amongst other things that the tribunal followed an inappropriate procedure. However, it must have been apparent to Dr Lynn, who has considerable skills and is highly intelligent, that he was asserting before that tribunal that he had been accepted back into membership of the Union, otherwise the only complaint he could make under the statute was to the EAT.[8]In relation to the two matters before us, Mr Epstein of counsel, on behalf of the Union, submitted that the question of whether Dr Lynn had been admitted or re-admitted to union membership had been decided by the Employment Tribunal in their decision of 23 September. They had concluded that Dr Lynn had been a member of the Union since March 1996; that he was registered as a member of "what was loosely called the "staff branch" at head office. This was a holding branch for union members who did not otherwise have a natural local branch in which they could participate." Thus, he said, the complaint made to the EAT [as opposed to the appeal] was bound to fail on the grounds of issue estoppel. Unless and until the EAT were prepared to uphold the appeal against the Employment Tribunal's decision, the EAT had no jurisdiction to deal with the originating complaint. It seemed to the President that it would be preferable were the whole question of Dr Lynn's membership to be investigated, without prejudice to Mr Epstein's submissions. The President had a sense of unease about the way the Employment Tribunal had approached the case and as to the documentation relied upon by the Union. Further, the Union appeared to be making a number of conflicting statements about Dr Lynn's position: for example, they said he had been excluded and expelled and were now saying that he had remained a member from the outset; that he had been a member of the Newham Branch and Mr Mellors [the head of the membership records department of Unison] told the Employment Tribunal that he believed that Dr Lynn was still a member of that branch but that if that was not the case then "arrangements would be made for Dr Lynn to join that branch if he preferred to do so" [see paragraph 7 of the Employment Tribunal's written decision]. Accordingly directions about disclosure were made and the matter proceeded to a full hearing of Dr Lynn's application to the EAT.[9]We have to say that the records of the Union are not as complete or accurate as they should be. This lack of reliable written material made the task before us more difficult than it need have been. It goes without saying that Unions are, by law, required to keep proper membership records and any failure in this regard is unfortunate.[10]We find the following facts. As part of the settlement agreement, Dr Lynn was paid £750. Shortly thereafter, on 29 January 1997, he applied to the Union for access to legal advice and assistance in connection with his employment related disputes with Newham LBC He indicated that he had been off work sick since February 1996 with a virus and post virus illnesses and that his sick pay had come to an end on 20 January 1997, and his sick certificate was due to end at the end of February. He said that there was a directions hearing scheduled for 28 February 1997 in the Employment Tribunal. This request went 'round the houses' within the Union. It appears that the London Regional Official to whom this request was referred did not consider that there was any Regional Officer attached to the branch to which Dr Lynn belonged ["Unison Staff Branch"] and that in the time available it was not possible to arrange representation. The unhelpful attitude of the regional official was dealt with by the Union's legal department and they invited Dr Lynn to liaise with the Regional Officer for the future. Unfortunately, the Regional Officer wrote to Dr Lynn a letter which provoked the applications now before this court. In the second sentence of the second paragraph Mr Cornelius wrote:
"I knew nothing of your Unison membership and no Regional Officer is allocated to the Unison Staff Branch, of which you are apparently a member."
This letter was calculated to undermine Dr Lynn's confidence in the settlement agreement.[11]Meanwhile at the beginning of February 1997, Dr Lynn had approached Mr Mellors and asked him for the Union's financial assistance. There is some dispute about precisely what happened in this connection but on a balance of probabilities we concluded that Mr Mellors referred Dr Lynn to the Unison Welfare Offices where he met with Mr Dawson on 3 March 1997. Unison Welfare is a separate registered charity and the funds are available to members of the Union and certain of their dependants who qualify for financial assistance. By the time he saw Mr Dawson Dr Lynn had completed an application form and presented it to Mr Dawson, saying that he was destitute as his sick pay had ceased. Mr Dawson satisfied himself that Dr Lynn was a member. He was told that his membership dated from 15 April 1996 and that he had had continuous membership since that date. On 17 March Dr Lynn went to Mr Dawson's office again when he was told he would be given a grant of £850. On March 19 or 20, Dr Lynn collected the cheque and signed a receipt for it. The money represented a grant of £250 towards the cost of food and £600 for rent and living expenses.[12]At about the same time, Dr Lynn invited his employers to appoint him a health and safety representative. Mr Mellors approached the LEA but neither he nor the LEA accepted that Unison had any standing to make such an appointment as Unison has no negotiating rights for teachers and, in any event, Dr Lynn had not been at his place of work for nearly one year due to sickness and as such could not sensibly be appointed. There were also some discussions about Dr Lynn's dues, which Unison considered to be outstanding.[13]Quite separately, Mr Mellors wrote to the Regional Secretary, Mr Humphrey, on 26 March 1997 as follows:
"In accordance with the Rule Book, on membership issues, I would be grateful, if you could transfer Dr Lynn's membership to an appropriate branch within London Region. As you know, Dr Lynn is not an employee of the Union and as such should not be attached to the Unison Staff Branch. However, Dr Lynn was temporarily attached to the Unison Staff Branch due to the dispute about his membership and his application to the Industrial Tribunal. Our Department, has the necessary papers concerning Dr Lynn and we will be happy to forward these, either to you or the appropriate Branch which is identified for him."
[14]There is no record that this communication was ever sent to the Newham Branch. Indeed, there are no relevant documents passing between the region and this Branch. Dr Lynn says that he visited Ms Stacey who told him that her branch was for blue collar workers and she expressed surprise that Dr Lynn was a member of Head Office/Staff Branch. Although there is a dispute about it, we accept that Dr Lynn was informed by Mr Mellors that the Newham Branch would not accept Dr Lynn into membership. After the Tribunal hearing in July 1997, when it was suggested to him that he was a member of Newham Branch, Dr Lynn went to Unison's Headquarters and asked for a computer print out from their membership records. He was given a printout which showed him to be a member of the Staff Branch. On the same day, an officer of the Union wrote to Dr Lynn saying that there had been a computer error.[15]Unison was formed from two other Unions - NALGO & NUPE. There had been two Newham branches prior to Unison's formation. Newham No 2 branch was ex NALGO and Newham number 1 Branch was ex NUPE. The two branches were amalgamated into one Unison Branch as from 4 July 1997 and was called the Newham UNISON branch. In response to the disclosure orders made by this court, UNISON said that there were no branch minutes from 7 January 1997 to 24 July 1998 and no notification of meetings sent out by the Branch between 7 January 1997 and 24 July 1998. We accepted the evidence of Mr Remington that the NALGO records were in a shambles and much of the relevant information had to be constructed from central records. Many of the addresses were wrong. Charges were laid by the Unison against some 15 ex NALGO members covering misappropriation of funds and other related matters.[16]Further, there were two Membership Records Systems in operation: known as the Unison membership records system [UMR] and the Unison Membership system [UMS]. The printout from the UMR system showed Dr Lynn on 28 August 1997 as a member of the Staff Branch, and Dr Lynn was given a copy of that. On that date the record was amended and show him to be a member of the Newham Branch, and computer printouts for August 1998 showed the amended position. Although we were suspicious about the printouts and the explanation for the mistake, we are not prepared to find as a fact that Unison officers were being dishonest in their evidence or in their dealings with Dr Lynn. On balance, because of the administration difficulties which inevitably follow from a complex amalgamation of two sizeable unions, we are prepared to find that there was a genuine error in the computer held material, which was properly corrected showing Dr Lynn to be a member of the Newham Branch. We also find as a fact that Dr Lynn was properly notified of his right to cast his vote in a ballot or elections to fill a vacancy for the post of Regional Officer.[17]We turn, therefore, to the issues before us, in the light of our findings of fact. It must be stressed at the outset that this case is not concerned with whether the Union have implemented the compromise agreement made in January 1997. This Court cannot determine contractual issues arising out of compromise agreements. Rather, our task is to determine whether Dr Lynn was a member of the Union [by continuation or re-admission] on 7 July 1997, when he presented his application to the EAT. As noted above, the EAT only has jurisdiction to hear the originating application if, at that date, he was not a member of the Union. The Act, but perhaps not the agreement, is concerned with membership of the Union per se and not with membership of any particular branch. Provided that he was a member of the Union, it does not matter, subject to the Rules, whether he was a member of the National or Newham Branches. Membership of a Union is to be determined by reference to the Union's Rules. To be a member, a person must have accorded to him the full rights of membership, including the opportunity to hold office and vote in elections.[18]In this case, it seems to us that Dr Lynn was re-admitted to membership as from 7 January 1997 when he was allocated to what may be called a holding branch, namely the staff branch, from where he was to be transferred to the appropriate branch in due course. As a member of the staff branch he did not have the right to put himself forward as a candidate for a Branch Office. The problem for Unison was that the Newham Branch was, broadly, in chaos, due to the amalgamation and until the amalgamation was complete there was resistance from the NUPE branch to assimilate Dr Lynn into its membership. Centrally, the officers at national level tried to force the issue but until the two branches were formally amalgamated Dr Lynn remained a member of the staff branch. He was transferred to the Unison Newham Branch when it was formed, although the computer records failed to record that fact, until they were amended at the end of August 1997.[19]Under section G of the Rules, paragraph 1.1 provides:
"Every member, excluding employees of the Union, shall be in membership of a branch established in accordance with these Rules. Disputes concerning the branch to which it is appropriate for a member to belong will be determined by the [NEC]."
Under section F, every branch shall be included in one of thirteen regions. In section C of the Rules, special provision is made for membership to be extended to those employees of the Union who pay their subscriptions. A central register is maintained at Head Office of those who are employee members who have all the rights and benefits accorded to full members, save those specified in paragraph 2.8.2. One of the excluded rights is the right to be in membership of any branch of the union.[20]In the light of our findings, the question arises whether Dr Lynn was admitted or re-admitted "to the union" within the meaning of section 176(2). We think he was. In the first place, Dr Lynn paid subscriptions as though he were a member and the Union received them as such. Second, Dr Lynn applied for and was granted some financial assistance. Dr Lynn makes a number of points which he says shows that he was not treated as a full member of the Union. In relation to the payment out of the Welfare Fund, he says that the circumstances in which he received the sum of £850 is significant. He says that the money was paid as a 'one-off' payment and was less than he could have been paid, had the union really regarded him as a member with full rights. He says that the payment was only made to him because he was taking the union to court again. We disagree. The money that was paid was not ungenerous. It appears to us from the evidence that Unison regarded Dr Lynn's case with understanding and compassion. We attach no significance to the fact that it was treated as a one-off payment out of the Welfare Fund. This was a perfectly fair way of describing the payment. Dr Lynn also suggests that the Union failed to give him proper legal support. It seems to us that there is some criticism to be made of the way the Union handled the matter because the national officers were, at that time, unsuccessfully trying to get him into Newham Branch. But the delays which occurred were due more to this confusion rather than to any attempt to deny Dr Lynn his full representational rights. Finally, Dr Lynn says that the Union never really assisted him in his desire to be appointed a Health and Safety representative at his place of work, and that failure was indicative of his lack of status as a member. Again, we disagree. It seems to us that Dr Lynn's desire to hold such a representative position was likely to be a non-starter because Unison did not have bargaining rights in relation to teachers and because of Dr Lynn's prolonged absence from work.[21]If Unison had been more open with Dr Lynn then we think that his legitimate concerns could have been addressed. That said, the Union were in a difficult position both because of the reluctance to have Dr Lynn as a member at Branch level and because of the re-organisation. It seems to us that he was admitted to the Union when he was allocated to Staff Branch because there he enjoyed the benefits and privileges accorded to full membership. And after his transfer to the newly formed Newham Branch he was a full member without any qualification. When he became a member of the Newham Branch his membership was backdated to April 1996, the date when he first joined Unison. At the date of his application to the EAT he was, thus, a full member of the Union and the EAT has no jurisdiction to entertain his complaint.[22]As to the appeal, it is moot because we have reached the same conclusions as the Employment Tribunal, having had extensive evidence and disclosure. There would be nothing to be served by allowing the appeal on procedural grounds, as the result would be unaffected.[23]Accordingly the appeal and the application are both dismissed.