ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS & FIREMEN v MR JAY LEE [2004] UKEAT 0625_03_2402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0625_03_2402Case No Appeal No. UKEAT/0625/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS & FIREMENAPPELLANTMR JAY LEERESPONDENT
Before
Mr Justice BurtonDate 24 February 2004
[1]APPEARANCES For the Appellant MR J HENDY (One of Her Majesty's Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW For the Respondent MR L J BARNES (Representative) SUMMARY Contract within s174(4)(a)(iii) of TULRA 1992 for which a Trade Union cannot expel a member is limited to being or ceasing to be a member of a political party (in this case BNP). A union can expel a member if its reason is exclusively his or her activities as a party member and not his or her party membership per se: and such conduct does not need to be linked to his or her membership of the Union. Remitted to ET. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by the Associated Society of Locomotive Engineers and Fireman (ASLEF) against the unanimous Decision of the Employment Tribunal at London Central after a hearing on 8 April 2003, in a Decision promulgated on 21 May 2003, that the Applicant, Mr Lee, who is a member of the British National Party (BNP) was unlawfully excluded by the Respondent, ASLEF, contrary to section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 ( TULRA ).[2]The relevant sections of TULRA are sections 174, 176 which deals with remedies, which have not been relevant to the hearing of this appeal, and section 177, which is effectively a definition section. Section 174 reads as follows, in material part:
"(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section. (2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if) (a) he does not satisfy, or no longer satisfies, an enforceable membership requirement contained in the rules of the union ….. (d) the exclusion or expulsion is entirely attributable to his conduct. (3) A requirement in relation to membership of a union is "enforceable" for the purposes of subsection (2)(a) if it restricts membership solely by reference to one or more of the following criteria - (a) employment in a specified trade, industry or profession, (b) occupational description (including grade, level or category or appointment), (c) possession of specified trade, industrial or professional qualifications or work experience. (4) For the purposes of subsection 2(d) "conduct" in relation to an individual does not include (a) his being or ceasing to be, or having been or ceased to be - (i) a member of another trade union, (ii) employed by a particular employer or at a particular place, or (iii) a member of a political party …. (5) An individual who claims that he has been excluded or expelled from a trade union in contravention of this section may present a complaint to an employment tribunal."
The only relevant definition in section 177 is at sub-paragraph 1(b):
" "conduct" includes statements, acts and omissions"
[3]As we have indicated, this has been an appeal by ASLEF, which has been represented before us, as it was below, by John Hendy QC. Mr Lee has been represented before us, as below, by a representative, Mr Barnes, who has a degree in law and has argued the Applicant's case cogently and clearly.[4]The history, it seems, began with a report from a Ms Kearney of ASLEF to the General Secretary,Mr Rix, dated 17 April 2002, which read as follows:
"It would appear that the above member is standing for the BNP in the council elections in Bexley. We were first alerted to this via a telephone call from a Bill Ashcroft, an Anti-Nazi League activist who was formerly in the RMT. On checking that a Mr Jay Lee was a member, I telephoned Searchlight whether it was likely to be the same person, Lee being a common name. They informed me of the address and approximate age of the individual and this checks out. I asked Searchlight to fax over any further information they had on this man. Attached is information which shows that Mr Lee is quite a well-known activist in the BNP. He has stood before in the general election and the press cuttings show he has been active around the country, and is a sidekick of the ….. BNP organiser in South London. Election material states Mr Lee is a train driver. The evidence clearly shows that the Mr Jay Lee, on our records, is the same man as the one who is standing in the North End Ward for the BNP"
[5]This report had attached to it documents, which are described as follows by the Employment Tribunal, in paragraphs 13 to 15 of the Decision. "13 On 17 April 2002, Marion Kearney of ASLEF sent a report to Mick Rix, the General Secretary of ASLEF, concerning Mr Lee ……The report states that Ms Kearney was first alerted via a telephone call from an Anti-Nazi League activist and she attached various information showing that Mr Lee was an activist in the British National Party. The information available was an extract from Searchlight, the magazine of the Anti-Nazi League, which showed that Mr Lee had stood as a candidate for Newham South for the British National Party in the local elections on 7 May 1998; and an extract from Spearhead for February 2000 with articles written by Mr Lee. Spearhead is the magazine of the British National Party. There was also an extract from Searchlight of February 2002 ….. which stated:
"The tape is the latest chapter in the BNP's campaign against Islam which began after the summer riots in Oldham in Bradford, but intensified after the terrorist attacks of 11 September. In October, activists handed out anti-islamic leaflets outside Canterbury and York Cathedrals. J Lee, a BNP activist in Bexley, even adorned a priest's outfit for the occasion…….. 14 There were also electioneering papers entitled "
Northend Patriot" ….. 15 Attached to Ms Kearney's report …. was a fax from Bexley Council for Racial Equality in which it was alleged:
"He had seriously harassed ANL [Anti-Nazi League] leafleteers (female) including, - Taking pictures of them - Taking their car numbers -Making "throat cut"gestures - He followed one woman in his car all the way to Dartford then back to Bexley, where he saw where she had parked her car - clocking her house number. This has been reported to the police."
[6]The Tribunal makes its findings as follows in paragraph 16 of its Decision:
"Mr Lee accepted that he took photographs but he does not deal with any of the other allegations that are made in the fax from the Bexley Council for Racial Equality….. In evidence, Mr Lee said that he had not been spoken to at all by the police and there was no other evidence that he had been. The Tribunal concluded that there was some evidence that Mr Lee did do some of the things alleged and that complaints were made. There has been no real rebuttal by Mr Lee in his evidence except on the issue of the matter having been reported to the police."
[7]This was referred to the Executive Committee, which is responsible under the ASLEF Rules (Rule 16(8) for expulsion, with a resolution proposed by Mr Samways, the President of the Executive Committee, and seconded by a Mr Tyson, that the Applicant be expelled. The resolution read:
"Proposed Samways, seconded Tyson "
That the report be noted and Mr J Lee be expelled from ASLEF with immediate effect in accordance with 1978 AAD policy." This is a reference to the 1978 Annual Assembly Delegates Policy. It was pointed out at the Tribunal hearing, and accepted by the Tribunal, that in fact the policy as approved by the Delegate Conference in 1978 was not, in accordance with the motion originally proposed, to exclude members of groups such as the National Front, but to "campaign vigorously to expose [their] obnoxious policies".[8]At the Executive Committee meeting on 19 April 2002, Mr Samways' resolution to expel the Applicant was passed unanimously. Mr Samways gave oral evidence at the Tribunal. After an attempt to agree notes of the Tribunal hearing between the parties, pursuant to Rule 7 of the Practice Direction, a last minute request was made to the Chairman of the Employment Tribunal for her notes of Mr Samways' evidence, and, thanks to the extreme diligence of the Chairman, such note was provided at very short notice, by reference to Mr Samways' witness statement, to which he deposed in chief, and the Chairman's Notes of his oral evidence in chief and cross-examination.[9]The material paragraphs of his witness statement are paragraphs 8 and the second numbered paragraphs 13 and 14 (for some reason the numbering began again at 13). In paragraph 8 Mr Samways states:
"8 I was the President … of the Executive Committee, which considered the information we were presented with and which resulted in the expulsion of Jay Lee."
He then sets out of what that information consisted, the fact that the "Applicant had promoted his racist and fascist views and was standing as a candidate in local elections in May 2002 promoting those views;" the reference to the contents of the "Northend Patriot", a document which the Applicant and others had published; the reference to incidents in October in Canterbury and York which we have cited from paragraph 13 of the Employment Tribunal Decision; the contents of the Bexley CRE report; and the fact that in Spearhead, described as a "fascist magazine edited by John Tyndall", the Applicant had been "as a regular columnist making racist and fascist statements, many to encourage racial hatred, including the copy extract from February 2000" Mr Samways concluded that recital of the information before the Executive Committee as follows:
"But for this conduct the Applicant would not have been excluded/expelled from ASLEF."
[10]In the second numbered paragraphs 13 and 14, he said as follows:
"13 I have no doubt at all, that, had Jay Lee been a member of the British National Party, but had not engaged in the conduct/activities that brought him to our attention and which we considered in relation to our decision to expel and exclude him, he would not have been expelled or excluded, or even disciplined. 14 There are other members of the BNP in ASLEF. I understand we do not have good proof of who they are. No-one else has been expelled from the union for being a member of the BNP."
[11]In oral evidence the Chairman's Notes record Mr Samways as saying "If it is just BNP no action". It is common ground that this was a summarised note of Mr Samways saying that if it had just been a question of the Applicant's membership of the BNP then there would have been no action against him. He continued:
"It was the action of bringing the trade union into disrepute"
. In cross-examination Mr Samways is then recorded as saying the following:
"ASLEF considers BNP to be fascist and racist party. Lawful to deny based on membership of political party"
It appears quite clear to us that this is a misprint, or a misrecording, for " unlawful to deny based on membership of political party". He then further stated:
"Nothing in union rule book. Only when a complaint comes in. I know people today who are in various other parties than Labour and no one expelled for membership. Only expulsions are for bringing union into disrepute."
Finally " If union discovered ASLED member was BNP member would not expel from union."[12]Mr Rix, the General Secretary, did not give evidence. He it was who sent the official letter from ASLEF to the Applicant informing him of his expulsion. The General Secretary is required by Rule 16(18) to carry out the instructions of the Executive Committee. Mr Rix's letter was dated 24 April 2002. It read as follows:
"We are writing to advise you that your membership is…incompatible with Membership of ASLEF, and you will likely bring our Union into disrepute, and that you are against the objects of Rule 5 of our Union. You did not tell ASLEF that you are a member of the British National Party and an active member of a well-known fascist organisation. You did not tell us that your activities, on behalf of the BNP had been brought to the attention of the police. This information should have been supplied to us on application. Therefore due to our rule book requirements and a long standing policy of the 1978 AAD of ASLEF your membership has been terminated as it should not have been accepted in the first instance."
[13]There was an appeal brought before the Appeal Committee of the Union which was heard on 13 March 2003. Although given an opportunity to do so, the Applicant neither appeared nor was represented. The Union's case was put by Mr Rix, with Mr Samways at his side. There is a transcript which records Mr Rix saying, so far as material to this appeal, as follows:(1) " On the documentation which we have supplied in the Appeal hearing, this is the matter which we are putting before you, that it is not just about BNP membership but it is also about conduct."(2) "We have been very careful in a lot of respects in the way that we have conducted these matters, because of how people construe things. It was important for us to establish, which we did at the Executive Committee, that we knew it would be illegal, basically, to expel somebody on the basis of membership of a political party, so it had to be done on the basis of conduct and the issue of bringing the Union into disrepute, which this person has done. By this person's very actions and the statements that he has put out through the press and the media, leaflets and things like that, he has brought great shame to our Union." Also in the bundle were a number of press cuttings and press reports, but we do not consider them to have been relevant to the Decision which the Tribunal had to make, and which we have to consider.[14]We turn to clear out of the way a number of matters which we have concluded are not relevant to our determination. First, Article 11 of the Convention of Human Rights. Both sides rely upon this Article which reads as follows: 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."[15]ASLEF submits and Mr Barnes, on the Applicant's behalf, does not contest, that there is what has been called a "negative right of association". This is a right vested in the members of a Trade Union, and Mr Hendy QC also submits in the Union itself, as a necessary element of the right to associate, namely to exclude from the association, provided that no detriment is caused by way of loss of livelihood.[16]Mr Hendy QC refers particularly to the passage in the judgment of Lightman J in the Chancery Division in the case of RSPCA -v- Attorney General and Others [2001] 3 All ER 530 at paragraph 37(b) where he said this:
"The proposed criterion for exclusion relates to the reason for joining the Society: the Society has a legitimate interest in excluding those whose reasons for joining may render their membership contrary to the interests of the Society. What really is in question in this case is not the freedom of speech or thought of members or applicants for membership, but the freedom of association under Article 11 of the European Convention on Human Rights, of the Society itself: that freedom embraces the freedom to exclude from association those whose membership it honestly believes to be damaging to the interests of the Society. (see Cheall v UK (1985) 42 DR 178 at 185 and Gaiman's case [ 1970] All ER 362 at 274, [1971] Ch 317 at 331)."
He submits that section 174 must be read compatibly with the Human Rights Act and Article 11, by virtue of section 3(1) of the Human Rights Act 1998 , and further that, if necessary, he will seek, although this must be reserved for a higher Court, as the Employment Appeal Tribunal has no power to grant it, a declaration of the incompatibility of section 174 with Article 11.[17]Mr Barnes points out that the very words of Article 11(1) contain a right to join trade unions. Mr Hendy QC submits that there is no such right, by reference to the case of Cheall -v- APEX [1983] 2AC 180 , in the House of Lords, particularly at 191 per Lord Diplock:
"My Lords, freedom of association can only be mutual; there can be no right of an individual to associate with other individuals who are not willing to associate with him. The body of the membership of APEX, represented by its executive council, and whose best interests it was the duty of the executive council to promote, were not willing to continue to accept Cheall as a fellow member. No doubt this was because if they continued to accept him, they ran the risk of attracting the sanction of suspension or expulsion of APEX from the TUC and all the attendant disadvantages to themselves as members of APEX that such suspension or expulsion would entail. But I know of no existing rule of public policy that would prevent trade unions from entering into arrangements with one another which they consider to be in the interests of their members in promoting order in industrial relations and enhancing their members' bargaining power with their employers; nor do I think it a permissible exercise of your Lordships' judicial power to create a new rule of public policy to that effect. If this is to be done at all it must be done by Parliament. Different considerations might apply if the effect of Cheall's expulsion from APEX were to have put his job in jeopardy, either because of the existence of a closed shop or for some other reason. But this is not the case. All that has happened is that he left a union, ACTSS, in order to join another union, APEX, which he preferred. After four years of membership he was compelled, against his will, to leave it and was given the opportunity, which he rejected, of rejoining ACTSS, if he so wished. My human sympathies are with Mr Cheall, but I am not in a position to indulge them; for I am left in no doubt that upon all the points that have been so ingeniously argued, the law is against him …"
[18]Mr Barnes responds that such a statement of the law has been overtaken by the Human Rights Act and the incorporation of the Convention into English Law, and he refers to the decision of the European Court of Human Rights in Wilson and National Union of Journalists -v- The United Kingdom [2002] IRLR 568 , particularly at paragraphs 46 and 48, which emphasised the right of an employee to join a trade union. In his Respondent's Answer he claims what he calls a declaration that:
"under Article 11 of the Human Rights Act 1998, an individual may only be excluded/expelled from a trade union because of qualification requirements under TULRA section 174(3)(a)(b)(c), and that any rules of a union concerning exclusion/expulsion that are NOT those listed in the TULRA sections 174(3)(a)(b)(c) are null and void."
As we shall later comment, this is a misguided reference to the wrong subsection of TULRA , but in general terms it enshrines the case that he wishes to make, that Article 11 impinges upon the Decision, and in fact compels it his way, whereas ASLEF asserts that it compels the conclusion its way.[19]The Respondent's submission is not only that the law supports the case for the negative association upon which it relies, but further that any such right as the Applicant relies upon is either non-existent or at any rate very limited, and Mr Hendy QC relies on the passage in the decision of the European Court of Human Rights in Cheall -v- UK, to which Lightman J was referring in the passage from his judgment in RSPCA , which we have cited, and we quote:
"The right to join a union "for the protection of his interests" cannot be interpreted as conferring a general right to join a union of one's choice, irrespective of the rules of the union. In the exercise of their rights under Article 11(1) unions must remain free to decide in accordance with union rules questions concerning admission to and expulsion from the union. The protection afforded by the provision is primarily against interference by the State"
[20]As we have indicated, Mr Hendy QC accepts that we are not in a position to grant a declaration of incompatibility, on the one hand, and on the other hand it is clear that the declaration by Mr Barnes in his Respondent's Answer, to which we have referred above, can also not be made by us. But it is also clear to us that the very existence of the competing claims under Article 11 (albeit that it would seem to us, on the authorities, that, absent a case of prejudice to livelihood, in this case the Respondent's right of negative association for the Union and its members would seem likely to override the asserted right of association of the Applicant) renders it more appropriate for us to seek to resolve the construction of the statute without reference to those competing rights. Mr Hendy QC, while reserving his position, does not dissent from this course, and Mr Barnes said that he understood, and indeed he accepted that it was thereby being assumed in the Applicant's favour that there is at least arguably an Article 11 right, such as he asserts.[21]Second, the Data Protection Act. Mr Barnes in his Respondent's Answer also seeks a declaration:
"that all UK tribunals are bound by the provisions of the Data Protection Act 1998, and allowing before an Employment Tribunal unlawfully obtained information, as the basis of the cause of action against an individual, is an infringement of the data protection and human rights of that individual."
This was clearly on the basis of the Applicant's wholly unparticularised case, and, we add, one not at all understood by us, that there has been a breach of the Act. We pointed out that there is, so far as we can see, no order of the Employment Tribunal relating to the production or non-production of documents, which we are being asked to reconsider on appeal, and that there is, in any event, no apparent jurisdiction for this Appeal Tribunal to consider the matter, nor even any apparent relevance to any question which we do have to decide. Mr Barnes did not develop the point orally. We are satisfied that it does not arise for consideration.[22]Third, the question of "linkage", and breach of the Union rules, which go together, although they were, to an extent, treated separately. Mr Barnes asserts, and asserted before the Tribunal, that the Union acted in breach of its rules, not least by relying on the incorrect version of the AAD, but, in any event, by pursuing the Applicant for bringing the Union into disrepute when there was no basis for it. This was an argument which plainly weighed heavily with the Employment Tribunal, which appears to have been persuaded to consider it necessary to find linkage between the conduct of the Applicant complained of and his membership of ASLEF.[23]This can be seen from the following paragraphs of the Employment Tribunal's Decision:
"11 In October 2001, Mr Lee wore a priest's outfit to distribute anti-islamic leaflets outside Canterbury and York Cathedrals …. There is no suggestion that there was any link with ASLEF in relation to this activity by Mr Lee as a British National Party activist. 38 ….. Mr Hendy relied upon the election address set out in the "
Northend Patriot", the article in Spearhead and the article in Searchlight and the report of the Bexley Council for Racial Equality There is nothing in these documents which indicates a link in public between Mr Lee and ASLEF which would bring ASLEF into disrepute. The first mention of Mr Lee being a member of ASLEF is in the Morning Star of 23 April after the decision to expel Mr Lee had been made ….. 41 ….. There is no reference in the Appeal Heating to explain what evidence there is linking Mr Lee's membership of ASLEF with his activities which ASLEF takes exception to. 44 ……. Nowhere in the verbatim transcript of the appeal is there evidence to link his conduct as a BNP activist with his membership of ASLEF….."[24]This appears to us to have been an entirely wrong approach by the Employment Tribunal, and even Mr Barnes does not appear now to suggest that this is relevant to the question which the Tribunal had to decide. It may be that it goes to the question of whether there was a breach of the rules, i.e. a proper conclusion that the Applicant brought the Union into disrepute, but this appears to us be equally irrelevant to the substantive considerations of the Employment Tribunal, pursuant to section 174(2)(d) of TULRA, by which the only question is, as the Tribunal correctly recorded in paragraph 2.2 of its Decision: "Whether the Respondent can show that the exclusion or expulsion is entirely attributable to Mr Lee's conduct pursuant to Section 174(2)(d) of TULRA,"24.1 If the Applicant has, or had, a complaint that the Union did not act in accordance with the rules, then he has, or had, a remedy pursuant to section 108A of TULRA , whereby "(1) a person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect …. (2) The matters are - (b) disciplinary proceedings by the union (including expulsion)."24.2 The rules might be relevant if the Union was defending its conduct by reference to section 174(2)(a) and (3), as set out above, but that does not arise here. It is in that context that we pointed out that the declaration which Mr Barnes sought in his Respondent's answer, which is directed apparently towards section 174(3), is misconceived.[25]It appears to us that the Employment Tribunal's Decision has been seriously infected by this wrong approach.[26]We turn to the real issues before us, and which were before the Tribunal, as to whether the expulsion was lawful under sections 174(2)(d) and 174(4)(a)(iii), and in particular it is necessary to look at the interface between those two subsections. We are satisfied that:(a) a Union can rely on a member's conduct to expel him or her;(b) the Union cannot rely on the member's conduct where the conduct is his or her being, or ceasing to be, a member of a political party (excluded conduct);(c) the Union must show that it justified its expulsion entirely by reference to the conduct, not including the excluded conduct. What then is "excluded conduct"?[27]Mr Barnes' Respondent's Answer asked for a declaration as follows:
"that the phrase of " a member of a political party " contained within TULRA section 174(4)(a)(iii) includes 'lawful political activities, political statements, political acts, political omissions"
In the course of his submissions to us, with promptings from the Bench, he reformulated his case as being that excluded conduct within section 174(4) (a)(iii) means any conduct by the Applicant as a member of a political party i.e. in his capacity as a member of a political party. The Employment Tribunal did not find in his favour in this regard. The Tribunal appeared to accept the distinction drawn by ASLEF between the simple fact of being a member of a political party and conduct over and above basic membership, i.e. active membership or activities as a member.[28]We agree with the Tribunal and with the Union and reject, in this regard, Mr Barnes's contentions.28.1 This is, in our judgment, the natural meaning of the words of the subsection.28.2 This is particularly so where, within the relevant subsection, "being" falls to be contrasted and coupled with "ceasing to be". The latter, we presume, would be aimed at, for example, a hypothetical requirement of a Union that all members must be members of the Labour Party. In such a hypothetical case a member cannot be expelled for ceasing to be a member. It is, in our judgment, the state of "being", in the sense of becoming and remaining, or the state of "ceasing to be", that is the excluded conduct.28.3 This is also clear from the contrast with subsections 4(a)(i) and (ii). The "excluded conduct" will prevent the simple fact forming any part of the reason for expulsion that the member was a member of another union, or was employed by X Ltd or at Y's factory. What would not be excluded conduct would be what such member got up to while he or she was employed by X Ltd or at Y's factory.28.4 The distinction can be well supported, as Mr Hendy QC submitted, by the House of Lords decision in Associated Newspapers Ltd -v- Wilson [1995] ICR 406 . This was a case based upon construction of section 23(1) of the Employment Protection (Consolidation) Act 1978 , now contained, in materially the same terms, in section 146 of TULRA . Section 23(1), set out at page 410 in Lord Bridge's speech in that report, read as follows:
"Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of - (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or (b) preventing him or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions."
Lord Bridge immediately went on to summarise the claim of the applicant, namely that by omitting to pay him the 4.5% pay rise, paid to those who had signed individual contracts, the employers contravened section 23(1)(a). The claimants alleged breach of that section by virtue of the employers' deterring their employees from taking advantage of the Union's collective bargaining, and the House of Lords differentiated between membership of the Union and participation in its activities or advantages. Lord Lloyd in his speech summarises the position, at 424-5:
"Like Lord Bridge of Harwich, I cannot regard the case [a decision of Knox J] as authority for the broad proposition that membership of the union and making use of the union's services are in some way to be equated. In my view, section 23(1)(a) was intended to protect trade union membership as such, that is to say, the right to associate as members of an independent trade union, just as section 23(1)(b) was intended to protect those taking part in trade union activities at an appropriate time. I can see no justification for reading in the words "or making use of the essential services of the union" in section 23(1)(a) and still less justification for regarding trade union membership and the use of trade union services as the same thing…."
Lord Bridge, at 418, and consequently Lord Keith at 409, agreed. 28.5 The interpretation put forward by Mr Barnes is, in our judgment, an impossible and impractical one. The subsection cannot mean any conduct as a member. What conduct is to be excluded from the ambit of section 174(2)(d) by virtue of the words "being a member", any conduct as a member, or any official conduct as a member, whatever that might mean, or any lawful conduct, or any conduct which does not bring the Union into disrepute? How is any of that to be judged or limited? What if he becomes a member of a political party during some course of conduct; does he acquire exemption? When is he or is he not acting as a member of a political party, if he is in fact, in carrying out some act or activity, pursuing his own predilections or beliefs, which are what led him to join such a party?[29]Mr Barnes dismissed as a reductio ad absurdum the suggestion that it might be argued that, if it was only being a member which was excluded conduct, then the act of filling in an application form or paying a subscription might be, therefore, outside that excluded conduct. Mr Hendy QC rightly, in our judgment, abjured any such absurd point and submitted that being a member would include, within excluded conduct, any necessary act for the purpose of being or continuing to be a member, of the kind described by Mr Barnes. He submitted that the cloak or protection of membership of a political party could not prevent a union from expelling a member for uttering the kind of statement, or performing the kind of acts, alleged against this Applicant.[30]Subject to any declaration of incompatibility, such as may hereafter be sought by ASLEF, we are satisfied that the only conduct that is excluded is the conduct of becoming or remaining a member of a Union, and that if that conduct formed part of ASLEF's reason for exclusion, as opposed to the Applicant's acts or activities or statements, whether as such a member or otherwise, then the expulsion would not have been "entirely attributable to" included conduct.[31]Did the Employment Tribunal follow this approach? In three places in the Employment Tribunal Decision it might be said that it did. 31.1 In paragraph 37 it stated as follows:
"The letter of expulsion indicates that one of the reasons for expulsion was that Mr Lee was an active member of the British National Party. This, of itself, is not a matter entirely attributable to his conduct but is because of his membership of a political party which is excluded from conduct under section 174(4)(a)(iii) of the Act."
The letter of expulsion is, in our judgment, not entirely unambiguous. We have quoted it above; it appears to us that it is at any rate a possible interpretation of the second paragraph that Mr Rix was referring, or was asserting, not only that the Applicant was a member of the British National Party but an active member, and that it was his activeness which rendered the conduct a matter of complaint. Certainly there is reference in the following sentence to the Applicant's activities. On the other hand, Mr Barnes has pointed out that there is the reference in the following paragraph to the 1978 AAD, which, as we have earlier indicated, appears to have been misunderstood or misrecollected by Mr Rix. But, of course, all the Tribunal is doing in this paragraph is referring to the letter. It is not expressing a view, never mind a finding, as to whether it is to the letter that one must look for the reasons for the expulsion, as opposed to anywhere else. 31.2 In paragraph 39 the Tribunal stated as follows:
"The Tribunal has taken note of the verbatim transcript of the proceedings before the Appeals Committee which the Tribunal considered damning to the Respondent's argument that the expulsion was entirely attributable to Mr Lee's conduct and not to his membership of a political party."
Once again, the Tribunal does not explain its reasoning any further or analyse the transcript any further. We have set out above two quotations from the transcript; it is right that the first quotation is at least open to the interpretation that the expulsion was due to both membership and the conduct of the Applicant, but even that is not, in our judgment, entirely clear. However, the second passage which we quoted argues very strongly the other way. In any event, once again, the point must be made that this is a quotation by reference to the appeal transcript, and it was not the appeal which constituted the expulsion of this Applicant. 31.3 Finally, at paragraph 44, the Tribunal does say in general terms:
"The only reference in the press is after the decision to expel him and all of the evidence before the Tribunal indicates that the expulsion was mostly because Mr Lee was a member of the British National Party. His conduct was another factor that ASLEF took into consideration but it cannot be said on the evidence before us that the expulsion was entirely attributable to his conduct. Part of the reason for his expulsion was his membership of a political party which does not comprise conduct under section 174(4)(a)(iii)."
This follows on immediately after the passage, to which we referred earlier in this judgment, about the absence of linkage.[32]Notwithstanding those three passages in the Employment Tribunal's Decision, it is clear to us that the utterly central question is not considered by the Tribunal, perhaps because it was misled by the irrelevant issue of the absence of linkage:-32.1 It does not address, as we have earlier stated, the issue of who decided to expel the Applicant. That is essential, in order for the reasons for expulsion then to be considered. It was entirely clear, one would have thought, that the decision was that made by the Executive Committee. Mr Samways was the proposer of the resolution, and the President of the Executive Committee. He gave evidence to which we have referred above. There is, as we have indicated, an inference which could be drawn from the Employment Tribunal's Decision, but no finding that Mr Rix's letter is central, or in some way overtook the impact of the decision of the Executive Committee; as we have said, there is no finding to this effect, and the letter is said, in paragraph 38 of the Decision, to have "shortcomings". If it is ambiguous, and we have already indicated that it is, in our judgment, at least arguable that it was ambiguous, or even if it was not ambiguous, it must at least have been necessary for the Tribunal to set it together with, and in the context of, the evidence of Mr Samways, certainly if its content was to cause the Tribunal to ignore or override his evidence..32.2 On the basis of accepting Mr Samways' evidence - and of course he may have been dishonest, he may have mistakenly given evidence as to what occurred at the Executive Committee and as to what the Executive Committee reasons were, but his is still the evidence that was given - it was impossible for the Tribunal to conclude that ASLEF expelled the Applicant for being a member of the BNP. Quite apart from the fact that Mr Rix, at the appeal hearing, is recorded as expressly saying that care had been taking in this regard, Mr Samways gave evidence as to what he said were the actual reasons. He was not disbelieved by the Employment Tribunal, nor was his evidence in some way explained away; indeed, Mr Samways' evidence is accepted for the purpose of contrasting it with the content of Mr Rix's letter in paragraph 37 of the Tribunal's Decision, where the Tribunal says as follows:
"the evidence of Mr Samways was that if the union discovered that an ASLEF member was a BNP member, that person would not be expelled from the union. Mr Samways told us that he knew of people who were in various parties other than Labour, and none had been expelled from membership. The only expulsions were for bringing the union into disrepute."
That is crucial evidence, which appears to have been accepted by the Tribunal, because it is recorded in a way that leads us to conclude that the Tribunal was accepting it, indeed, by contrasting it with the letter by Mr Rix. If that be right, then it appears to us that, unless some other finding was made as to its irrelevance, there was only one answer that the Tribunal could have given as to the reasons upon which the Executive Committee acted, if the Tribunal was indeed satisfied that it was the Executive Committee which had reached the conclusion.[33]Mr Hendy QC showed us his written submissions below in which he said as follows:
"unless Samways is lying, this [that is, his evidence] is conclusive."
Mr Barnes seeks to give relevance to his arguments about breach of the rules, and the use of the incorrect version of the AAD, so as to cast doubt on the motivation of those who expelled the Applicant, and points out that Mr Samways himself relied on the incorrect version in the body of the resolution which he proposed before the Executive Committee, but as we have said, Mr Samways' evidence appears to be accepted by the Employment Tribunal. Hence it is that Mr Barnes, in the course of his submissions, put forward, again with the encouragement of the Bench, as a summation of the way he put his case, a suggested further amendment to his Respondent's Answer, namely that the Tribunal ought to have found that Mr Samways was lying. However it did not.[34]We are satisfied that this case must be remitted to a different Tribunal , informed by the approach which we lay down and which, in our judgment, the Tribunal below did not follow, and thereby erred in law, as follows.(1) Who, and/or what body, on the Union's behalf, expelled the Applicant?(2) What were the reasons for that expulsion? Was it his conduct? Was the expulsion entirely attributable to his conduct, excluding his being a member of the BNP i.e. was it only because of his statements, acts and omissions as a person, and as a BNP member, and not because he was a member of the BNP.[35]In those circumstances this appeal is allowed.