Appeal No.	 EAT/875/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 November 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
(AS IN CHAMBERS)

DR J LYNN	APPELLANT

UNISON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

MEETING FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondents	MR P EPSTEIN
(of Counsel)
Legal Services
UNISON
1 Mabledon Place
London
WC1H 9AJ

	MR JUSTICE MORISON (PRESIDENT):     I am grateful to the parties for their assistance at this Directions Hearing. The background to this case may be shortly stated.

	Dr Lynn is a teacher and has for some time been a member of UNISON. For reasons that do not need to be gone into, the union took the view wrongly, as they now accept, that he was not an appropriate person to be a member.

	He accordingly exercised his statutory rights to make a complaint against UNISON that he had been improperly excluded or expelled from his trade union.

	The matter was then compromised between the parties and the terms of the compromise were firstly, that, by consent, it was declared that the applicant was unlawfully excluded from the respondent union, and secondly, also by consent, the parties agreed various terms set out in a schedule. On that basis, it was ordered that the application be withdrawn.

	The terms of the Industrial Tribunal’s decision is defective in the sense that it is accepted by Mr Epstein on behalf of UNISON, and by Dr Lynn, that the Industrial Tribunal’s record does not show that there had been a declaration of unlawful exclusion. That is an important omission, no doubt inadvertent on the tribunal’s part. The provisions of s. 176(2) require a declaration before an applicant can obtain an award of compensation. The application for compensation shall be made to an Industrial Tribunal, if, when it is made, the applicant has been admitted or readmitted to the union, and otherwise to the Employment Appeal Tribunal.

	It is UNISON’s case that they have readmitted Dr Lynn to membership of the union and that they had done so prior to the agreement made on 7th January 1997. It is Dr Lynn’s contention that he has not been readmitted to the union because he has not been readmitted in accordance with the Rules. It is his case that he can and should be allocated to a branch because all members, other than employees, must belong to a branch. He says that he has purportedly been allocated to an entity which is not a branch and accordingly he has not been readmitted to the union.

	He made an application, therefore, to the Employment Appeal Tribunal seeking compensation. We would have jurisdiction to deal with the application if it be true that at the date of that application he had not been admitted or readmitted to the union. There is therefore an issue between the parties as to whether we have jurisdiction to hear that complaint.

	Meanwhile, Dr Lynn made a further application to an Industrial Tribunal alleging in April 1997 that he had been unjustifiably disciplined by the union and unlawfully excluded from membership. That case came before the Industrial Tribunal on 24th July 1997, and by a decision which was sent to the parties on 23rd September 1997, the complaints were dismissed. 

	It is Mr Epstein’s contention that the issue before the Industrial Tribunal on that occasion raised the very issue which arises on the Originating Application which has been made to the Employment Appeal Tribunal. There, the Industrial Tribunal were satisfied that Dr Lynn had been readmitted to the union, and accordingly says Mr Epstein, that is a fact found by an Industrial Tribunal which precludes us from having jurisdiction under s.176(2).

	It will be seen, therefore, that when the matter comes before the Employment Appeal Tribunal there will be questions as to whether there is an error of law in the tribunal’s decision as Dr Lynn alleges; and whether it is open to Dr Lynn to argue that we have jurisdiction to hear his application for compensation. The ambit of that hearing is therefore unclear. If we acceded to the submission that there is issue estoppel and that we are not entitled to enquire further as to whether Dr Lynn was readmitted to the union, then the hearing would be relatively short. If on the other hand we did not accede to that submission, then the hearing would be much longer requiring original evidence to be given.

	At this stage I give no indication as to how the Court is likely to view the matter, but will leave it to the parties to argue their position at a full hearing which will take place not before 1st February 1998. I direct that the matter comes back before a panel comprising me and two lay members. Obviously they will have to be lay members who have no connection with UNISON. The estimate of time is difficult because of the context in which this problem arises, but I direct that two days be set aside for it. I direct that the parties exchange such evidence as they would wish to adduce at any hearing, assuming that any evidence is to be given, together with any documents that relate to the matters in issue. In particular, documents from the union which will show the status of the “Head Office Branch”, if there is such a thing, and its relationship to the “Staff Branch” if such exists. That will enable Dr Lynn to understand whether the Industrial Tribunal have arrived at the correct conclusion. I require that exchange to take place by 23rd January 1998, and thereafter, I would grateful if the parties could liaise with the Employment Appeal Tribunal to make sure that these documents are provided to us.

	During the course of his submissions, Mr Epstein very properly made it plain that the union is concerned at the fact that they are being taken from one Court to another on what are either the same or very similar issues, and he has indicated that the union might be minded to apply for an order for costs were they to be successful at the full hearing. I make no comment one way or the other about that, but put it on the record.