Oni v Unison Trade Union

The Employment Appeal Tribunal confirms that the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994, construed with section 3(2) of the Employment Tribunals Act 1996, confines the Article 3 extension to claims brought by an employee in that capacity and therefore to claims against the employer. Regulation 3(1)(c) of the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 reflects section 18B of the ETA and requires that the respondent's pre‑issue contact must be a request for conciliation about a matter likely to give rise to proceedings against that respondent.

The appellant, a former nurse, sued her trade union for breach of a contract of membership and for unlawful discipline. The Employment Tribunal struck out the claims for lack of jurisdiction and for failure to obtain an ACAS early conciliation certificate. The appellant appealed on two points. First, she argued that Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 permits an employee to bring contract claims against non‑employers where the contract is connected with employment. Second, she argued that correspondence between the respondent and ACAS satisfied the exemption in Regulation 3(1)(c) of the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014. The EAT, Soole J, heard the appeal and dismissed it, addressing both statutory construction and the factual scope of the exemption.

(1) The appeal is dismissed. The Tribunal has no jurisdiction to entertain the appellant's membership contract claim against the union under Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 read with section 3(2) of the Employment Tribunals Act 1996. Article 3 is to be read as conferring jurisdiction in respect of a claim of an employee in that employment capacity, and therefore ordinarily against the employer. (See paras [58]–[71].)

(2) The wording of the Order and the surrounding provisions (Articles 2, 3(b)(c), 4, 5, 7, 8 and 10) support a restrictive construction. The court preferred a restrictive approach to avoid unduly extending tribunal contract jurisdiction where courts remain able to hear such claims. (See paras [59]–[71].)

(3) Regulation 3(1)(c) of the Employment Tribunals (Early Conciliation... ) Regulations 2014 must be construed consistently with section 18B of the Employment Tribunals Act 1996. The required "contact" by the respondent must involve a request to ACAS 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 respondent. (See paras [84]–[96].)

(4) The documentary contacts relied on by the appellant all post‑dated the presentation of the 2011 proceedings or did not constitute a qualifying request under section 18B(1). None satisfied Regulation 3(1)(c). The exemption therefore did not apply and no early conciliation certificate validated the 2016 claim. (See paras [87]–[99].)

(5) Although one provision (Article 8(c)(i) parenthesis) might prima facie support a broader construction, that isolated feature does not outweigh the statutory context and primary legislation. The judge rejected resort to Hansard under [1993] AC 593 because the statutory language was not shown to be ambiguous. (See paras [66]–[71].)

(6) Practical consequence and order: the dismissal by the ET for want of jurisdiction and for failure to comply with the early conciliation requirement is upheld. The appeal is dismissed. (See concluding paragraph.)

• Employment Appeal Tribunal: Judgment dismissing appeal; Soole J sitting alone (5 February 2018) ([2018] UKEAT 0092_17_0502).
• Employment Tribunal: Claims struck out for lack of jurisdiction and for failure to obtain an ACAS early conciliation certificate (EJ Snelson, 11 October 2016; reconsideration dismissed 24 October 2016).
• Earlier proceedings: Related ET judgments on 2009–2013 claims including decisions by EJ Ahmed, EJ Rogerson and EJ Britton; costs orders and appeals noted (see text).