Oni v Unison Trade Union

Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 confers contract jurisdiction only for an employee’s claim against the employer. Although the contract may be another contract connected with employment, the Order does not extend jurisdiction to a claim against a non-employer, including a trade union.

The exemption in regulation 3(1)(c) of the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 must be read consistently with section 18B(1) of the Employment Tribunals Act 1996. The respondent’s contact with ACAS must be a pre-issue request for conciliation concerning a matter likely to give rise to proceedings against that respondent.

The appellant, formerly a member of the respondent trade union, brought Employment Tribunal proceedings alleging breach of her membership contract in the union’s handling of earlier proceedings against her employer and the union. She also alleged unjustified discipline arising from the union’s pursuit of costs.

Employment Judge Snelson held that the Tribunal lacked jurisdiction. The appellant was not an employee of the union for the purposes of the contractual claim, and she had not obtained an ACAS early-conciliation certificate. The appellant appealed, contending that her union membership contract was connected with her employment and that correspondence between the union and ACAS during earlier litigation engaged the regulation 3(1)(c) exemption.

1. Appeal dismissed. The Employment Tribunal correctly struck out the contractual claim. 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, is confined to a claim by an employee against the employer.

2. The expression “other contract connected with employment” does not enlarge the category of respondent. It permits a claim under a contract other than the contract of employment, but the claim remains one between employee and employer. The structure of the Order, including its provisions for employer contract claims, time limits, excluded contractual terms and financial limit, supported that construction. The parenthesis in article 8(c)(i), though facially consistent with the appellant’s argument, did not outweigh the construction compelled by the enabling legislation and the Order as a whole.

3. A restrictive construction was appropriate because the contractual jurisdiction is a limited concurrent jurisdiction intended to avoid dual proceedings where they naturally arise. Any question whether the membership contract was sufficiently connected with employment therefore did not arise.

4. The early-conciliation ground also failed. Regulation 3(1)(c) of the Employment Tribunals (Early Conciliation: Exemption and Rules of Procedure) Regulations 2014 reflects section 18B(1) of the Employment Tribunals Act 1996. The required contact must be a request to ACAS for a conciliation officer’s services concerning a matter which, if unsettled, is likely to give rise to proceedings against the respondent.

5. The relied-on correspondence concerned proceedings already issued in 2011. It was not prospective contact of the statutory kind. The ACAS letter did not justify inferring a request by the union; the solicitor’s May 2011 letter made no request; and the 2012 letter’s request concerned existing proceedings. The appellant had not complied with section 18A(1), and the exemption was unavailable.

• Employment Appeal Tribunal: dismissed the appellant’s appeal and upheld the Employment Tribunal’s jurisdictional decisions.
• Employment Tribunal: Employment Judge Snelson, by decisions dated 11 and 24 October 2016, held that the Tribunal lacked jurisdiction over the contractual and unjustified-discipline claims.