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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Obasa v Unison [1998] UKEAT 857_98_0102 (1 February 1998) URL: http://www.bailii.org/uk/cases/UKEAT/1998/857_98_0102.html Cite as: [1998] UKEAT 857_98_0102, [1998] UKEAT 857_98_102

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APPEARANCES

 

For the Appellant	MISS J EADY (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there are arguable points of law to be raised in an appeal which Mrs Obasa wishes to make against the unanimous decision of an Industrial Tribunal held at London (North) whereby her application for unlawful discrimination was dismissed.

The crucial question for the Industrial Tribunal was whether there was extant any complaint of discrimination which had been made within the relevant three month period. That issue depended upon whether the latest complaint was one which she could make under s.11(3) of the Race Relations Act 1976 and in order to bring herself within that sub-section, she had to persuade the Industrial Tribunal that she was a member of UNISON on the relevant date. UNISON was the Respondent to her application for discrimination.

The Industrial Tribunal found as a fact that the Applicant's employment by the London Borough of Islington, was terminated by a letter of resignation dated 11 May 1995. The Industrial Tribunal set out in paragraph 17 of their decision the relevant terms of that resignation and referred to the letter of 9 June 1995 written in response to it, which indicated that she would be paid for her notice period, which would take her to the 15 June 1995.

As a result of her leaving her employment in those circumstances, did she cease to be a member of UNISON. That question was to be answered by determining what the rules were of the union at the relevant time and then construing them.

The Tribunal concluded effectively, that she ceased to be a member of the union when her resignation took effect, and thus she could not bring herself within s.11(3) of the Act. In relation to that issue, Miss Eady under the ELAAS scheme invited us to say that there were two arguments to suggest that the Industrial Tribunal erred in law, the first was, that under the rules of the union, membership shall extend to persons who have previously been members of the union in employment and who are currently on unpaid maternity leave from their employment.

Islington had adopted a scheme called the Islington Council's Maternity and Parenthood Scheme, under which employees who took advantage of it could require the Council to provide them with a job when their relevant child had reached his or her fifth birthday.

The question therefore arose as to whether when Mrs Obasa took advantage of the Islington scheme, she could be said to be a person on unpaid maternity leave from their employment. The Industrial Tribunal rejected that submission. Miss Eady says this is a pure question of law and there is a respectably arguable case that the Industrial Tribunal misdirected itself as to the proper interpretation of that rule.

Secondly, and in any event, it is provided by Rule 7 of the rules that a person who ceases to eligible for membership, shall automatically cease to be a member unless she intends to be absent from the employment for a temporary period only, in which case she may be allowed by decision of her branch to retain membership.

In this case, on the Tribunal's findings of fact, Mrs Obasa had deducted from her wages after 15 June, contributions to UNISON. Thus it is said, that that is an indication that she was being allowed by the branch to retain her membership while she was away temporarily, or alternatively that she was in membership after 15 June by reason of the payment and receipt of that membership fee. Again, it is submitted by Counsel that this is an arguable point of law.

We can say at once that we regard both points as arguable, but we do not wish to give any indication by giving leave for this matter to proceed to a full hearing that the appeal will be successful. We are satisfied simply that this is an issue which properly should be considered at some length in due course.

The third argument was based upon a previous Tribunal decision which is referred to in the Appellant's own notice of appeal. In a previous decision the Industrial Tribunal in relation to a complaint of constructive dismissal made by Mrs Obasa concluded, "our finding is that the Applicant did not terminate but merely sought to withdraw herself from the workplace by applying to take advantage of the Respondent's long term maternity policy which would have kept her away until her youngest child was of an age to be left while the Applicant attended work. She stresses to us that she could not afford to terminate her employment". On the basis of that decision, it is contended that it is arguable that this was a finding of fact that her employment had not terminated as at 15 June; that the Industrial Tribunal in the present case were bound by that finding of fact, alternatively should have explained why they were departing from such a finding. We do not regard this as an arguable point of law. It is clear it seems to us from the context in which the previous Industrial Tribunal had made their findings, that it was indicating to the Applicant that even if there had been repudiatory breaches of contract, it was not because of them that she withdrew from her employment. In other words, the Industrial Tribunal was saying that a necessary ingredient of a constructive dismissal case had not been made out. We therefore would not allow that point to be argued at a full hearing.

In addition to her complaint under the Race Relations Act it is submitted by Miss Eady on behalf of Mrs Obasa that she was also making a complaint under the Sex Discrimination Act 1975. In other words, she was saying that her trade union had discriminated against her by reason of her being pregnant. It is submitted to us that the Industrial Tribunal have not properly addressed their attention to that part of her complaint and insofar as they have said anything about the merits, what they do say is quite insufficient.

We regard that point a arguable. It seems to us as at present advised and subject to the Respondent's argument that having concluded that they had no jurisdiction to consider the Applicant's complaints, the contents of paragraph 28 thereafter cannot have any materiality in the determination of this appeal.

We have therefore identified three or possibly four grounds for the appeal, namely, the proper interpretation of UNISON's rules as to the circumstances in which membership ceases. Secondly, the contention that the Industrial Tribunal did not properly deal with the Appellant's claim of sex discrimination and thirdly, insofar as it did purport to deal with her complaints on their merits their reasons were inadequate. For reasons which we have given, we regard the third point as unlikely to occupy any significant period of time.

We give the Appellant leave to amend the Notice of Appeal in the terms advanced by Miss Eady to whom we are grateful. It seems to us that this is a category B case, that it will last half a day and that there should be no notes of evidence. The Respondents have 14 days in which to object to the amendments to the Notice of Appeal.