Nurse cannot claim union failed to support her case against employer, EAT rules

16 Feb 2018 By Emily Burt

Third-party contract claims against unions may yet succeed in normal courts, says expert

The Employment Appeal Tribunal (EAT) has ruled that a nurse cannot successfully claim breach of contract against her union for failing to support her case for race victimisation and unfair dismissal against her NHS employer.

Upholding the original tribunal decision, the EAT found that the claimant’s breach of contract claim could only be brought against her employer – not a third party such as the union. 

Mrs Oni was employed as a haemoglobinopathy specialist nurse at NHS Leicester City Trust from 6 October 2006 to 6 July 2009. In February 2009, while employed, she lodged a case against her employer claiming race discrimination and constructive unfair dismissal.

She withdrew it in August, having already issued a second claim against the trust, also alleging race discrimination and constructive unfair dismissal – as well as victimisation. At the hearing of the second claim, Oni’s Unison representative, Mrs MacGregor, who had advised her through her claims, was called as a witness, despite Oni opposing this on privilege grounds. 

The tribunal dismissed all Oni’s claims in February 2011. In March 2011, she issued a new claim against Unison, her union, alleging race victimisation and detrimental treatment by McGregor relating to her claims against the trust. The tribunal dismissed these claims on grounds of witness immunity, and Oni was ordered to make reparations to Unison in 2013. 

In 2016, Oni lodged a fresh claim with the employment tribunal, alleging that Unison had breached her membership contract by failing to properly support her claim against the NHS, and had unjustifiably disciplined her in pursuing her for the costs for her previous claim. 

Tribunal judge Snelson struck out Oni’s breach of contract claim on the basis that she could bring a claim only against her employer. Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 applied only to claims of an employee against her employer. 

The article states: “Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries).” 

The tribunal found that for her current claims, the required early conciliation certificate – which proves a request for a conciliation officer’s services in relation to a matter that is likely to give rise to legal proceedings if not settled – had not been obtained. 

Appealing to the EAT on behalf of Oni, counsel Tom Coghlin said her membership contract with Unison was unanswerably “connected with” her contract of employment by the trust, as it stated: “The primary care trust (PCT) is committed to working in partnership with staff side organisations (trade unions) ... The PCT actively encourages you to join any trade union, or professional body of your choice, subject to any rules for membership that organisation may apply…” 

The trust also deducted union fees from Oni’s wages every month, which, Coghlin said, subsequently involved the union in collective bargaining on her behalf. He said the phrase in article 3 – ‘in respect of a claim of an employee’ – did not require the claim to be brought against an employer.  

However, the EAT upheld Unison’s argument that the wording of article 3 of the 1994 order is “critical and decisive” in confining claims of an employee against her employer, and could not be applied to a third party. Therefore, Oni’s claim was dismissed. 

“In the context of the [Employment Protection (Consolidation) Act], which in its original form related entirely to claims by employees against employers, the natural implication is that the respondent to a claim for breach of ‘any other contract connected with employment’ must be the employer under the contract of employment,” EAT judge Mr Justice Soole said in his ruling.

“It would have required express language to widen the potential category of respondents in any respect... even to an associated company of the employer.” 

Laurie Anstis, director at law firm Boyes Turner, told People Management that an individual could still feasibly bring a third-party claim – but only in the ordinary courts, not the tribunal. 

"This case confirms that the only person an individual can sue for breach of contract in the employment tribunal is their employer,” he said.

While that is to be expected, “there isn’t anything in this case that prevents an employee bringing a breach of contract claim against someone else – in this case her trade union – in the ordinary courts”, he added. 

“Claims brought in the ordinary courts are subject to different procedural rules to those brought in the employment tribunal, and the employee will often be better off claiming in the courts if their breach of contract claim is strong and has a high value."

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