MRS J MEDLEY v WORKING MEN'S CLUB AND INSTITUTE UNION LIMITED [2004] UKEAT 0782_03_1003

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0782_03_1003Case No Appeal No. UKEAT/0782/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J MEDLEYAPPELLANTWORKING MEN'S CLUB AND INSTITUTE UNION LIMITEDRESPONDENT
Before
Mr Justice BurtonDate 10 March 2004
[1]APPEARANCES For the Appellant MR JOHN BACON (Representative) For the Respondent MR PAUL DEAN (of Counsel) Instructed by: Legal Department The Working Men's Club & Institute Union Ltd 253-254 Upper Street London N1 1RY SUMMARY Sex Discrimination Lady members of local club not allowed to be associates of CIU (umbrella organisation). S. 12 of Sex Discrimination Act 1975 not applicable as CIU not relevant organisation and 'associates' are not members. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by Mrs Medley against the unanimous decision of the Employment Tribunal at Leeds chaired by Mr Grazin, on the hearing of a preliminary issue, that her claim against the Respondent, the Working Men's Club and Institute Union Limited ("the CIU"), be struck out on the ground that it was misconceived.[2]Mrs Medley has been represented, both below and before us, extremely ably, by Mr John Bacon, who is not a qualified lawyer but is plainly an exceptional advocate, and has put together a great deal of background evidence and submission which clearly was of great assistance to the Tribunal and has been of great assistance to us.[3]Today, Mr Dean of Counsel has appeared before us on behalf of the Respondent and we have not thought it necessary to call on him. This is not out of any disrespect to the way in which Mr Bacon put forward his case, but simply on the basis that we are satisfied that his appeal must fail.[4]The background to the case is that the CIU has been in existence, one way or the other, as we understand it, since 1868. It is effectively, as Mr Bacon described it, a federation of working men's clubs and social clubs all over the country. Those clubs are, subject to what we shall discuss further in the course of this judgment, the members of the CIU. Since 1873 there has been a category called 'associate' and that relates to those people who are members of the individual working men's clubs and social clubs, who by making a payment to the CIU become associates of all the clubs throughout the country, and an associate of the CIU itself. Mr Bacon says that it has been not his words, but those of those who lead the CIU, which have caused the associates to be described as the lifeblood of the CIU, and one can well understand that.[5]The issue here is as to whether Mrs Medley, on behalf no doubt of other women in her position, who is a member of an individual club, in her case the Bishopthorpe Social Club near York, can complain that women are not allowed to become associates.[6]The circumstances are extraordinary in this day and age. So far as the individual clubs are concerned, with which we are not dealing today, it appears from a speech made at the annual conference of the CIU by the then President, that only 53% of the individual clubs have full women members. That is stated by the President in his address as if this percentage was something to be proud of, and indeed no doubt in terms of increase of women membership over previous years, it is an achievement of which the centralised body can feel pleased; but the obverse is that only 47% of those individual clubs allow women the right of full membership. The quotation from Mr Dormer's presidential address is as follows: "The number of lady members in our clubs has remained at about the same level for several years - around 600,000 - but it is higher in percentage terms to the total because male membership has dropped. Nearly 53 per cent of clubs now have women members who have full rights and privileges of membership, which is also up on last year. That is to say that in 1,436 clubs women have full rights, and in 1,284 clubs they have membership but with restrictions. There are a few clubs which have no lady members." and by that Mr Dormer meant, as is quite clear, and as Mr Bacon has confirmed without dissent from Mr Dean on behalf of the Respondent, there are a few clubs which do not allow ladies to have any rights at all.[7]The Rules of the individual clubs, as made clear by Rule 8 (c) of the Rules of the CIU must, on the basis of an instruction thus given by the CIU, not include what used to be called, and was called in the seminal case of Dockers Labour Club and Institute Limited v Race Relations Board [1976] AC285, a colour bar.

(c) as follows:

"A club may be reprimanded, suspended from all or some of the privileges of membership or expelled by the vote of two-thirds of the members of the Executive present at an Executive meeting upon a charge of conduct detrimental to the Union, or for refusing admission to an Associate of the Union on grounds of colour, race, nationality or ethnic or national origins."
It can be seen immediately that there is however no provision by which the CIU can discipline its member clubs if they bar admission or membership on grounds of sex.[8]That is the position in relation to the individual clubs. Bishopthorpe itself, of which the Applicant has been a valued member and official for many years, is thankfully not one of the clubs which subscribe to such prejudicial conduct. However, it is in those circumstances not surprising, given that each individual club thus has the freedom to bar lady members entirely, if there is also a rule, which is now sought to be challenged by Mr Bacon on Mrs Medley's behalf, in the Rules of the CIU itself, with regard to associates.[9]As we have indicated, individual members of the clubs can, and it is now enshrined in clause 12 of the CIU Rules, become associates of the CIU by purchasing an Associate Card at the price of £2.00 each and Pass Cards at the price of £1.32 per year, which enable associates then, as we have indicated, to attend other clubs throughout the country than their own, but also to take part in national and communal activities organised by the CIU, and to certain other rights. As a result of clause 12, those who hold that position, namely associates of the Union, and have valid Associate Cards and Pass Cards, then have the same rights and privileges in other clubs as they would have at their own, except that they must not attend at any meetings of the clubs of which they are not members but associates.[10]By clause 12 (e) of the Rules the following is provided:
"Associate and Pass Cards may not be issued to lady members."
The result of that is that those such as Mrs Medley cannot, without special arrangements, attend, certainly as a right, other individual clubs within the CIU throughout the country, but they are also not able to attend CIU or Branch Council Meetings by virtue of clause 12 (f), nor, by virtue of clause 12 (g), are they eligible for nomination or election as an officer or member of the Executive of the CIU or a branch.[11]The way in which this is sought to be challenged by Mr Bacon on the Applicant's behalf is by reference to section 12 of the Sex Discrimination Act 1975 ("the 1975 Act") which reads as follows: 12(1) This section applies to an organisation of workers, an organisation of employers, or any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists.(2) It is unlawful for an organisation to which this section applies, in the case of a woman who is not a member of the organisation, to discriminate against her - (a) in terms on which it is prepared to admit her to membership, or (b) by refusing or deliberately omitting to accept, her application for membership."[12]Mr Bacon accepts that that section would not assist a complaint in relation to being excluded from a private club, and indeed it would seem he would have to accept, as indeed he did at one stage in the course of his submissions, that it would not enable a complainant to complain about being excluded from an individual social or working men's club such as her own, Bishopthorpe, although fortunately, as we have indicated, that does not arise. However, he submits that the CIU falls within s. 12 (1), and that, by being prevented from being an associate member, Mrs Medley is prevented from being a member of the CIU, within s. 12 (2).[13]Mr Bacon accepts, as indeed is obvious, that the Applicant required to succeed in front of the Employment Tribunal on both those grounds, that is, needed to surmount both those hurdles if she were to be able to complain of the effect on her and others of clause 12 (e) of the CIU Rules.[14]It is right, of course, that in a number of authorities the courts have regarded sex and race discrimination as an evil to be outlawed, and that that approach must and does inform the way in which courts and tribunals construe statutory provisions with which they have to deal. In the most recent decision in which this Employment Appeal Tribunal has dealt with section 12 of this Act, or in fact in that case the equivalent Act, namely section 13 of the Disability Discrimination Act 1995 , that need to construe appropriately was recognised, in paragraphs 5 and 6 of the judgment of this Appeal Tribunal given by the President on 2 December 2003, 1 Pump Court Chambers v Horton (The Times, 14 April 2004, EAT/0775/03). It is plain however that although courts and tribunals, and indeed Parliament, may regret and criticise the existence of unfavourable treatment on grounds of sex, the relevant Acts have not simply legislated against such conduct in general terms, but have identified, as Parliament must, specific areas in which such discrimination is unlawful. For example, there is presently no such unlawful conduct, justiciable in this Tribunal at any rate, against private members clubs, and there are only, so far as the Applicant is concerned, the provisions of section 12 of the 1975 Act, within which she can seek to bring herself if she is to be able to complain of the existence and effect of Rule 12 (e).[15]Consequently, although of course if the provisions of the statute are ambiguous, or can be construed broadly, they will be construed in favour of a complainant about sex, or race, or disability discrimination, the courts are not permitted to rewrite statutes. That is a matter for Parliament.[16]The Tribunal below did not deal with the issue under s. 12 (1). The Chairman, Mr Grazin, in a very concisely and well-argued decision, clearly relying on the helpful arguments put before him, left open the question under s. 12 (1). He recorded the argument by Mr Bacon that the Respondent could properly be classified as an "organisation of workers". Alternatively, that it was (and we use the term loosely at this stage) "any other organisation" within s. 12.[17]But the Tribunal recorded in paragraph 11 of its Decision that Counsel for the Respondent, then Miss McNally, expressly reserved her position on the proper interpretation of the subsection, and that the Tribunal found it possible to reach a decision on the issue before it without expressing a concluded view on the section 12 (1) issue, on the basis that if the matter proceeded either to appeal or to a full hearing on the merits, it would be for the Respondent to develop that argument. The Respondent has taken the point, and properly done so, in its Respondent's Answer, and it now falls to us to decide.[18]As it happens, the decision in 1 Pump Court Chambers v Horton (to which we referred) is of direct relevance to section 12 (1), and of some relevance to section 12 (2); although it is a decision on the Disability Discrimination Act 1995 , it is on an identical section. We regard ourselves, if not bound by it, certainly as persuaded to follow it.[19]We turn then to consider the submissions of Mr Bacon by reference to section 12 (1). His first submission is that the CIU is an "organisation of workers". He does not submit that the CIU is a trade union, as defined by section 1 (1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (" TULRA "). He draws a closer analogy with section 118 of TULRA , which deals with federated trade unions. But on any basis he has to accept that if the CIU is not a trade union it also cannot be a federated trade union, and the issue of federation can only therefore assist him, if at all, by analogy.[20]He submits, however, that "organisation of workers" ought to be regarded as a broader terminology than trade unions. If trade union were meant then the section would have said so. The statute must have intended something wider than a trade union; and we accept that proposition. However, we need to look to see what else could fall within the definition of "organisation of workers".[21]Mr Bacon points out that the CIU has been, for very many years, registered under the Industrial and Provident Societies Act 1965 , and its predecessors, which require (under section 1(1) of the 1965 Act) that, for the purpose of such registration, the society must either be, by section 1(2) (a) a bone fide cooperative society or by 1 (2) (b) the business of the society must be or be intended to be conducted for the benefit of the community, and that there are special reasons why the society should be registered under that Act rather than as a company under the Companies Acts.[22]We are prepared to accept that the CIU has been registered under the former provision, rather than the latter, namely that it is a bone fide cooperative society. But that does not appear to us even to be the starting point of a question as to whether the CIU is an organisation of workers.[23]Although the name of many, if not all, of the clubs has been for over 100 years "working men's club", there has never been a requirement that in order to become a member of such club the applicant for membership has to be a working man. Sadly it looks as though, at any rate until recently, the applicant had to be a man, but such applicant did not have to be a working man, as has been confirmed by Mr Bacon, in the sense of proving any membership of a trade union, or payment as an employee under PAYE. Mr Bacon confirmed (and indeed Mr Dean did not dissent) that there is and has been no qualification or classification at all for applicants to join.[24]The objects of the clubs of the CIU, in which umbrella the clubs are members, as we have indicated, are very broadly stated in clause 2 of the CIU Rules, including the provision and maintaining of convalescent homes, the provision of sport and recreation, the provision of education and lectures and schools and the full power to do all things necessary and expedient for the welfare and protection of its members. The particular object of the Bishopthorpe Club is to carry on the business of the club by providing for the use of its members means of social intercourse, mutual helpfulness, mental and moral improvement, rational recreation and the other advantages of a club.[25]There is no mention there of any limitation to, for example in 19 th Century terms at any rate, the advancement or support of the working class. Thus, there is nothing to prevent professionals joining, or employers, or people who do not work at all – not simply because they are unemployed but because they never have taken and never wish to take any job.[26]In essence, Mr Bacon's submission is, to paraphrase Lord Shawcross, "we are all workers now". Therefore, on that basis, the CIU is an organisation of workers. But if that be right, then there is no call for the rest of s. 12 of the Act which specifically provides for three categories of bodies which, and which alone, are covered by section 12 (1), to which we return. An "organisation of workers" is covered, an "organisation of employers" is covered; and that suggests that employers are, for this purpose, not workers; and then, to which we will devote more consideration in a moment, "any other organisation whose members carry on a particular profession or trade for the purposes of which the organisation exists". This last is not even a general catch-all or a fall back so that everybody is thus covered one way or the other in section 12. The third category is a very limited one, as this Employment Appeal Tribunal made clear in 1 Pump Court Chambers , and as we shall consider in a moment. But even if the third category were wide, that would not assist, but would positively damage Mr Bacon's argument that "organisation of workers" is itself a catch-all.[27]We are entirely satisfied that, insofar as the Chairman dealt with this in the limited circumstances in which he did in paragraph 10 of the Decision, the Tribunal was correct, and in any event we ourselves are entirely satisfied that there is no basis upon which it can be alleged that the CIU is an "organisation of workers".[28]We turn to Mr Bacon's second alternative (because he does not contend that the CIU is an "organisation of employers"), namely that it falls within the third category to which we have referred.[29]That is a very carefully drafted category, as we considered in 1 Pump Court Chambers , when we differentiated the decision of this Appeal Tribunal in General Medical Council v Cox , 22 March 2002 EAT/71/01 (unreported), in which it was concluded that the General Medical Council was not such an organisation, within the relevant equivalent section of the Disability Discrimination Act 1995 , whereas a barristers' chambers was. That was on the basis that we were satisfied that a set of barristers' chambers was an organisation whose members carried on a particular profession or trade, namely the practice of being a barrister, and the chambers, contrary to the contention of the Appellants in that case, was set up for the purposes of the carrying on of that profession or trade.[30]But it is clear that there are two requirements before an organisation can satisfy that definition:(1) The organisation has to consist of members who carry on a particular profession or trade;(2) (and this is a further limitation) Even if there is a body consisting, for example entirely of dentists, the body in question has to be a body set up for the purposes of the carrying on of that particular profession or trade, and if, for example, dentists gathered together for the purpose of contributing to charity, or to a lottery, together, then they might qualify for the first definition but not for the second.[31]The limited nature, consequently, of the definition with regard to this third category, is apparent, and it is entirely clear, despite Mr Bacon's eloquent attempts to the contrary, that the CIU is not such a body. The CIU has members. For the purposes of this argument, it must be assumed that Mr Bacon would succeed on his second argument, because otherwise he would fail anyway, that individuals such as Mrs Medley are members of it and not just the club's which are expressed to be the members. In those circumstances, one only has to pose the question in order for the answer to be obvious. Is the CIU an organisation whose members carry on a particular profession or trade? Mrs Medley has not given any evidence as to what profession or trade she carries on. She may or may not carry one on, but there will be many others like Mrs Medley who carry on all kinds of different professions or trades, and some who carry out none.[32]It cannot even be suggested, in our judgment, and it was only faintly so suggested by Mr Bacon, that in some way all the individual members of the CIU, if they are individual members, are carrying on the professional trade of being members of the CIU. That could only be the case if in some way they were all running the CIU, and Mr Bacon has accepted that it is very, very few who are involved even in the running of the individual clubs, certainly not the running of the CIU.[33]In those purposes, even without considering straining the language, it is clear that there is no basis on which it could be suggested that the individual members of the CIU carry on a particular profession or trade, not even to consider the further hurdle of the last few words of the subsection (as in the GMC case) relating to "for the purposes of which the organisation exists".[34]On that basis alone this appeal must fail. But we turn to the second consideration, in case we should have decided the other way in relation to the first hurdle, namely as to whether, by becoming an associate, Mrs Medley would have become a member of the CIU.[35]Mr Bacon has told us that in fact Mrs Medley has been allowed to attend meetings of the York City Branch of the CIU. That is not in evidence, and is not accepted by the Respondents, but even assuming it were the case it would not be relevant to a construction of the clause, and would only suggest that there had either been ignorance or waiver of the relevant rules. We cannot rest any conclusion on that basis.[36]Mr Bacon has referred to section 49 of the 1975 Act, but that does not assist him because it is a predicate of any consideration of section 49 that the organisation to which section 49 is dedicated falls within section 12; and if it does not fall within section 12, which is our consideration, then it does not assist him.[37]He has also referred to a decision which he took, it seems, from Stroud's Judicial Dictionary, called Leftly v Monnington [1879] 4 Ex.D 307. That is a case on the construction of the Metropolis Local Management Act 1855 , by which it was provided that church wardens of a parish constituted a part of the vestry and were entitled to vote in the vestry. Unfortunately one of the church wardens was adjudicated bankrupt, and section 54 of the Act provided that any member of any vestry or any parish mentioned in the Schedule who was declared bankrupt should thereupon cease to be such a member and was liable to a penalty. The court concluded, on construction of that Act, that as a result of being statutorily determined to be a part of the vestry with a right to vote, the church wardens were thereby members of the vestry with the penal consequences referred to.[38]It does not appear to us that the construction of that statute adds anything to the duty which in any event we would have, as is clear from the decision in 1 Pump Court Chambers v Horton , to assess the facts and circumstances of any particular case to see whether, whatever label may be placed upon the rights or duties in question, a particular complainant is or would be a member of the organisation in question.[39]Is an associate a member of the CIU on a proper construction of the context here? We have already referred to clause 12 (e) which requires that Associate Cards and Pass Cards may not be issued to lady members, that is, individual lady members of clubs. The consequences we have also referred to, namely in 12 (f) and (g), of not being given Associate or Pass Cards in terms of inability to take part in CIU activities, meetings and elections. But the crucial question is whether an associate, a person who does pay for an Associate Card, is, or thereby becomes, a member of the Union.[40]In this regard we must look at the rules although, as we have indicated, not without bearing in mind that we will not be hoodwinked or blinded by terminology in deciding the question. Clause 4 of the Rules provides who members are and it says "Members of the Union shall consist of such clubs as shall be admitted to the Union in manner provided by these rules." By clause 5 "A club admitted to membership shall hold one share of £4…" with certain provisions laid down as to the holding of those shares. It is provided that "A club shall forfeit its share on ceasing membership from any cause." By clause 6 there are conditions of membership, all of which are applicable to the member clubs. There is at clause 7 a provision for the payment by the club members of an annual fee of a minimum of £25 to per club. In clause 8 there is a provision for cessation of membership or privileges, either on non-payment or, as we have referred to earlier, by virtue of any detrimental conduct by the club. There is then a right of appeal against such suspension or expulsion from membership available to the club. By clause 11 there is a register of members which provides for the names and addresses of the member and certain other details. By clause 13 there is a provision for Council meetings, whereby meetings shall consist of representatives appointed by clubs, and we have indicated that the club is not entitled, on the face of the Rules, to appoint a representative who is not an associate.[41]None of those provisions applies to the associates, whose rights are set out in clause 12. It is apparent to us that just as in 1 Pump Court Chambers , where pupils have no rights of members, no rights to the assets of the organisation (the chambers) and no material obligations owed to the chambers, so here, associates are not and do not become members of the club as a result of these Rules. They are not registered as members. They do not hold shares. They are not subject to discipline as members. They are not subject to expulsion or suspension as members.[42]Mr Bacon points out that by clauses 12 (c) and (d) a person who is expelled or suspended from the club at which he is a member thereby is likely automatically to lose his Associate Card. But that is not the same as being removed from membership of the CIU. It would simply be a consequence of being removed from membership of the individual club.[43]Therefore, on this second ground also this application must fail. Mrs Medley cannot claim to be discriminated against in respect of an application for membership, or of prevention of her being a member of this organisation, CIU, even if the CIU were an organisation falling within section 12 (1). Consequently she has no remedy in these Tribunals.[44]We hope that that is not the end of the story, because of what we have been told by Mr Dean. We revert to our criticism of such a well-established and reputable organisation with so much good done over the years, in relation to this one blot on its reputation. We understand from Mr Dean at Counsel that there is to be a vote in the very near future in which the Executive is to propose the elimination of clause 12 (e), and presumably the amendment of clause 8 (c) so as to include a bar on sex discrimination as on other grounds of discrimination. We expect and hope that that will be carried through and that it will then render unnecessary any further concerns on the part of Mrs Medley and those many people like her.[45]In those circumstances, this appeal is dismissed.