MR C POTTER v UNISON [2004] UKEAT 0626_03_0103

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0626_03_0103

Case No Appeal No. UKEAT/0626/03

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR C POTTERAPPELLANT

UNISONRESPONDENT

Before

Mr Justice Burton

Date 1 March 2004

[1]APPEARANCES For the Appellant MR L J BARNES Representative For the Respondent MR A WHITE QC One of Her Majesty's Counsel MR T LINDEN (of Counsel) Instructed by: UNISON Employment Rights Unit 1 Mabledon Place London WC1H 9AJ SUMMARY Applicant (member of BNP) expelled from union on grounds of his conduct - too late to complain. Applies to rejoin union. Applicant refused because previously expelled. No breach of s.174 THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by Mr Potter, (the Appellant) who has been represented before us, as he was below, by Mr Barnes, a representative with a legal degree, but not professionally qualified as an advocate, against the unanimous Decision of the Employment Tribunal at Leicester, dismissing his complaint against the Respondent, the Trade Union, Unison.

[2]His complaint was that he had been excluded from Unison in contravention of section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRA") . Section 174 reads in material part as follows:

"(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 rule 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 of appointment), and (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 - ….. (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]"

By section 175 of the Act there is a time limit for bringing a complaint under section 174, extendable if the Tribunal were to be satisfied that it was not reasonably practicable for the complaint to be presented within that time period, of six months, beginning with the date of the exclusion or expulsion.

[3]The brief history of this matter is that the Applicant, who is a member of the British National Party, joined Unison in 1998. Disciplinary charges were brought against him in November 2000, and in paragraph 3 of the Employment Tribunal's Decision the various charges are set out, namely:

"It was alleged that you by your support, promotion, encouragement, participation in activities of an association with the British National Party, Leicestershire and Rutland Branch and the National Democrats between 1997 and March 2000, you were in breach of "various rules of the union relating to acts" in manner prejudicial or detrimental to the union", "acts of discrimination" and giving "encouragement to or participating in the activities of any fascist organisation, faction or grouping whose policies or aims have expressed or implied promotion of white supremacy or racial hatred at their core." "

Those disciplinary charges were heard on 29 November 2000, and a decision letter expelling him was issued on 5 December 2000, against which he appealed on 8 December. His appeal was heard on 20 March, and a decision letter upholding the expulsion was sent on 7 April 2001.

[4]If he was to challenge that expulsion within section 174 of TULRA, he would need to have brought a claim within six months of the expulsion, which would appear to mean within six months of 5 December 2000, the sending of the decision letter expelling him, which would be 5 June 2001. At the latest the time would have expired six months after his receipt of the decision letter upholding his expulsion after the appeal, which would be 11 October 2001. No such complaint was made in time, or at all, until 10 October 2002, when an Originating Application was issued in the Employment Tribunal making such complaint. No doubt recognising that the application was out of time and that there would be no likelihood of any explanation being given, such as might justify an extension upon the "reasonable practicability" basis, the Applicant withdrew that application to the Employment Tribunal.

[5]The result was, therefore, was that he was not entitled, both by virtue of the expiry of time and by virtue of res judicata on that withdrawal, to make any complaint about the expulsion in November 2000 before an Employment Tribunal. What he did, seemingly, instead of that was to apply to rejoin Unison in October or November 2002, and a letter was sent by Mr Remington, Head of Constitutional Matters on behalf of the union, dated 4 December 2002, which read as follows:

"Further to your recently completed application form to re-join UNISON. I write to advise you that you do not meet the criteria for eligibility for membership - UNISON Rule C 5.2. You were disciplined under Rule 1 due to your conduct bringing the union into disrepute. The disciplinary hearing established a penalty of expulsion. You appealed against that penalty and your appeal was unsuccessful - UNISON Rule I 9.2"

Rule C 5.2 related applications for membership by those who had been previously expelled or barred from membership, or had previously ceased to be a member while a disciplinary charge against him or her was outstanding.

[6]There was a case management hearing in the application brought by the Appellant at which, by consent, the parties agreed, perfectly understandably in the light of the history to which we have referred, that the details of the conduct, and the rightness or wrongness, sufficiency or insufficiency of the conduct, so far as justifying the original expulsion was concerned, was not an issue in the present Tribunal application. The fact of his expulsion for breach of rules - or we could say "alleged breach of rules", it would not make any difference - was of course taken as a given, and Mr Barnes made no objection before us, as he no doubt made no objection before the Tribunal, to the content of the charges, of which Mr Potter was, in the event, found sufficiently in breach to be expelled, should be set out in the way it was in paragraph 3 of the Decision, which we have repeated in this judgment.

[7]The Tribunal, therefore, had to decide whether the Applicant's exclusion, in the sense of a refusal to allow him to rejoin, offended against section 174 of the Act. It is quite plain that the Tribunal recognised, as no doubt did the Union, that it could not rely on section 174(2)(a) of the Act to justify that exclusion. We have already quoted that subsection and it relates to his not satisfying an enforceable membership requirement. Had that been capable of being relied upon by the Union, it would of course have been an answer for it, because one of the qualifications for membership was that the members should not have been previously expelled. But it could not be relied upon by the Union by virtue of the restrictive nature of subsection 174(3) of the Act, which we have quoted, which limited the enforceable membership requirements upon which a union could rely to exclude a member to those that are set out in that subsection, and having previously been expelled is not one of them.

[8]The Union, however, defended its conduct in excluding Mr Potter by reference to section 174(2)(d), namely a contention that the exclusion of him by Mr Remington, by sending that letter, was entirely attributable to the Applicant's conduct, namely his earlier conduct which had led him to be expelled. Not going into the detail, not assessing the sufficiency, but the simple fact that he had been guilty of some conduct, whatever it was, which had led him to be expelled, was, the Respondent submitted, the reason for his exclusion.

[9]The case management conference, or its result, is set out and referred to in paragraph 7 of the Employment Tribunal's Decision as follows:

"On the basis of the Case Management Conference it was agreed that we are dealing with the exclusion in the autumn 2002, and not with the original expulsion, which was the subject of the earlier proceedings that the applicant withdrew and which are well out of time. We, therefore, limited ourselves, and we have not heard evidence from the respondent, in particular, about the details of the original expulsion,merely the reason for the expulsion."

[10]The issues were summarised in paragraph 5 of the Employment Tribunal's Decision as follows:

"On 10 October 2002, the applicant issued a complaint to the Tribunal about the expulsion in 2001. He withdrew that application after advice so that he could reapply to the union and then, if necessary, issue the current proceedings. The application to rejoin the union came before Mr Remington, who was not involved in the decision making process of the original decision against the applicant. He refused the applicant's application to join the union on the basis that Mr Potter did not meet the union's criteria for eligibility under rule C5.1 because he had been expelled for a matter of conduct. The respondent has a rule excluding from membership anyone who has been expelled. Expulsion would only be for a matter of conduct. Mr Remington did not consider the circumstances of the applicant's conduct only that he was expelled for a conduct reason. The applicant complains then of his exclusion before us."

[11]There was, quite plainly, a finding of fact by the Tribunal that Mr Remington's reason was his previous expulsion for conduct. That is set out in clear terms in paragraph 10 of the Employment Tribunal's Decision as follows:

"Having accepted the evidence of Mr Remington we conclude that his reason was entirely by reason of the applicant's conduct. Mr Remington did not look at the detail of the conduct only that the applicant had been found guilty of conduct sufficiently serious to warrant expulsion. It was the fact of that conduct having already been determined that caused him to reject the application."

We read that sentence as if there were brackets around the words "having…. determined", so that in fact that last sentence reads "It was the fact of that conduct (having already been determined) that caused him to reject the application"; we are satisfied that that must be the correct understanding of that sentence. In paragraph 11 the Tribunal asked itself the question as to whether the conduct was excluded conduct, falling within subsection 174 (4)(a)(iii), and the Tribunal concluded that given that the conduct in question had not been looked at at all to see of what it consisted, the issue under subsection 4(a)(iii) did not arise.

[12]Mr Barnes has appeared for the Appellant, as he did in the recent decision of ASLEF -v- Lee in which this same Tribunal gave judgment orally on 23 February 2004; and he has set out his submissions clearly in a written Skeleton Argument which he has read out to us and expanded upon slightly in oral argument. Just as in Lee , we seek to clear out of the way some points which are not in issue before us:(1) Mr Barnes referred, in an original Skeleton Argument in support of this appeal, to

Article 11 of the European Convention

of Human Rights. He accepted, in the course of submissions today, that, subject to any application he may make for leave to appeal to the Court of Appeal in Lee , the Article 11 issue is to that extent moot, because we would be bound to follow our own decision in Lee . In that case we concluded that, for the reasons we there gave, while there was a clear negative right of association entitled to be claimed by the Union and its members, there was also, arguably, a right of an individual to join a Union, notwithstanding that that Union might not wish him or her as a member; and that that competing clash, insofar as it was a clash of rights under the European Convention of Human Rights, meant that, subject to any declaration of inconsistency between the statute and the Convention, or, pursuant to section 3 of the Human Rights Act , it meant that the sensible course, in the context of the clash of such rights, was to construe the statute and give it its ordinary meaning. In Lee there was a construction of a statute to be carried out, namely the question of the interrelationship between subsection 174(2)(d) and subsection 174(4)(a)(iii). In this case, there is not the same question. The only issue in this case is as to the application of section 174(2)(d). Insofar as any question of construction were to arise, we would follow the same course as we did in Lee . However, in any event, as will be seen, we conclude that this Decision does not depend in any way on construction of a statute, but on a pure decision of fact by the Employment Tribunal.

(2) Mr Barnes, understandably seeks to say, as he did in Lee , that there was some kind of breach of the rules by the Trade Union. The greater difficulty he has here is that, if there were any breach of the rules, it would relate to the original expulsion, which he has taken no steps to challenge; it is certainly too late for him to challenge any such expulsion under section 174, and it may well be, although we express no opinion on it, too late to challenge that act under section 108A of TULRA, to which we referred in Lee , either. A breach of the rules is therefore even more irrelevant in this case than it was in Lee .

(3) In Lee we indicated the clear conclusion that what Mr Barnes was seeking to argue, namely some relevance of section 174(2)(a) and (3), could not be supported, given that the Union in that case was relying wholly on section 174(2)(d). That is also the case here. The Union recognises, as we understand it, that it could not have relied upon an enforceable membership requirement, and it did not do so before the Tribunal. The nub of Mr Barnes's argument appears to be by reference to Mr Remington's letter, which we have quoted, that that in fact is what the Union was doing, namely relying on something that is not an enforceable membership requirement in order to justify the expulsion, and that it should in some way not be entitled to rely, as it did before the Tribunal, on section 174(2)(d). We do not agree. It is clear that the Union justified the expulsion, so far as it own rules are concerned, by reference to there being an enforceable rule, which the Union was entitled, in contract, to put into effect. Had they not had that rule, then the expulsion might have been unlawful in a different sense, namely challengeable either under section 108A or in the High Court; but the contractual justification is an entirely separate matter from whether the Union is also able to justify the expulsion in a Tribunal by reference to section 174. The Union recognised that it could only do so by reference to section 174(2)(d), and either it did so justify it or it did not; and to submit, as Mr Barnes did, that in fact it ought to have been trying to justify it under subsections 174(2)(a) and 174(3), which it would not have been able to do, is of no materiality. The question is whether the Tribunal was entitled on the facts to decide that this case fell within section 174(2)(d).

[13]Having cleared those three points out of the way, the main thrust of Mr Barnes's submission, namely that section 174(2)(a) and (b), and the rule relied upon by Mr Remington, ought to be the central question for this Tribunal, as it should have been for the Tribunal below, falls away, and he is left with his second submission, which is really the only material point, namely whether in some way the Tribunal's conclusion of fact in paragraph 10 of its Decision can be impugned. He noted that in the last point of paragraph 11 of the Tribunal's Decision in which there is reference to the word "solely", he asserted that that perhaps meant Mr Remington "solely", that is on his own, rather than the word "entirely" which might have been rather expected, given that that is the statutory word in section 174. However the Tribunal did use the statutory word in relation to exactly the same question when the Tribunal addressed it in terms in paragraph 10.

[14]The Decision is entirely clear so far as paragraph 10 is concerned, as we have already indicated. It is perhaps unfortunate that, in a passage which it is quite clear to us was simply intended to be a repetition at the end of paragraph 11, having traversed the question of excluded conduct, the Tribunal uses slightly different phraseology in the last sentences of the Decision, which reads as follows:

"Under the Act, we are only required to look at the reason for exclusion not the sufficiency of the reason and we are satisfied that Mr Remington, who made the decision to exclude, did so solely on the basis that the applicant's conduct in the past had been sufficient to lead to his expulsion. That we find is a permissible reason under the Act ….."

We have indicated that it appears to us quite plain that the last part of that sentence, "solely on the basis", is intended to be a repetition of the words "entirely by reason of the applicant's conduct", used in paragraph 10.

[15]Mr Barnes submits that the Tribunal must have erred, because in order to arrive at the conclusion that Mr Remington acted "solely", or indeed "entirely", on the basis of the Appellant's conduct then Mr Remington must have considered the sufficiency of that reason. We agree, and it is entirely for that reason that we are satisfied that what the Tribunal is saying in that sentence is that, as indeed it had already trailed by reference to the case management decision, it did not need to look at the sufficiency of the conclusion about the original exclusion, but simply the fact of the original conclusion; and consequently it was entitled to say that Mr Remington made the decision to exclude on the application to rejoin solely on the basis that there had been conduct by the Appellant which had led to the previous expulsion.

[16]It is quite clear that the Tribunal had put from their minds, indeed insofar as it ever knew them, the details of the original conduct and was, as the case management conference decision by consent obliged it to do, addressing only the fact that there had been such conduct. In those circumstances, Mr Barnes had an uphill task; he failed to fulfil that task, as is not surprising, because all the Tribunal had to decide, and it did decide, was that Mr Remington, when he made his decision to exclude, was making it solely on the basis that there had been earlier misconduct, of whatever nature it was, by the Appellant, which had led to his exclusion.

[17]That was a conclusion of fact which the Tribunal was entitled to come, if not driven to it, and it means that it made no mistake in law in concluding that this was an exclusion which fell within section 174(2)(d) of the Act. In those circumstances this appeal is dismissed; no error of law is indicated.