Oni v Unison Trade Union: EAT 5 Feb 2018

CONTRACT OF EMPLOYMENT
PRACTICE AND PROCEDURE
In 2009 the Claimant/Appellant presented complaints of unfair dismissal, race discrimination and victimisation against her former employers (the Trust). The claims were dismissed in February 2011. In March 2011 she presented claims against the Respondent Unison, her former union, alleging race victimisation and detrimental treatment by its representative in connection with her claim against the Trust. The claims were dismissed in 2013 and costs awarded against her in 2014. In 2016 she issued the present claims against the Respondent Unison, alleging breach of her contract of membership in respect of the claims against the Trust and against Unison; and that she had been unjustifiably disciplined by Unison in pursuing her for costs in the previous claim. The breach of contract claim was made on the basis that it fell within the ET’s jurisdiction under Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (the 1994 Order). No early conciliation certificate was obtained before presentation of the claim.
The ET struck out the breach of contract claim on the bases that Article 3 of the 1994 Order applied only to claims of an employee against her employer; and that in each claim the requisite Early Conciliation certificate had not been obtained.
The decisions were appealed on the basis that (i) the effect of the 1994 Order and its governing legislation (section 3(2) ETA 1996) was that a claim for breach of contract could be brought against a non-employer Respondent provided that the contract was ‘connected with’ the Claimant’s employment; and that the Claimant’s contract of membership with her union satisfied that requirement; and (ii) the claims fell within the exemption provided by Regulation 3(1)(c) of the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 (the EC Regulations), since correspondence between Unison and ACAS in 2011/2012 was ‘contact’ in relation to the same dispute as in the present claim.
The EAT dismissed the appeal on each ground, upholding the Respondent’s contentions that:
(i) on its proper construction Article 3 of the 1994 Order was confined to claims of an employee against her employer for breach of the contract of employment or of another contract connected with that employment; and
(ii) Regulation 3(1)(c) of the EC Regulations was governed by section 18B ETA 1996. This require the Respondent’s ‘contact’ to involve a request for the services of a conciliation officer in relation to a matter that (if not settled) is likely to give rise to relevant proceedings against that person. The cited correspondence of 2011-12 all related to the first (2011) claim which had been presented against the Respondent. Whilst one of these letters included a request for conciliation in relation to that claim, none was prospective, i.e. related to a matter that was likely to give rise to relevant proceedings.

Judges:

Soole J

Citations:

[2018] UKEAT 0092 – 17 – 0502

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 April 2022; Ref: scu.605650