United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D IBEKWE Public Transport (Staff) Consortium 31b Mervan Road Brixton London SW2 1DP


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an Appeal which Mr Lemon wishes to make against a decision of an Industrial Tribunal held at London (South) on 19 August 1998 which dismissed his complaint under section 146 of the 1992 Act.

The facts are very short. A membership list obtained in early 1997 should have shown that Mr Lemon was not a member of the Transport & General Workers Union. Employees of London General Transport Services Ltd had previously signed mandates, but mandates which were not to last in perpetuity. The attitude taken up by the employers, wrongly, in law, was that if an employee did not notify the employers after the expiry of the mandate that he wished his deductions to cease, the employers would go on making them. That is not the correct interpretation of the party's rights under section 68 of the Act.

By section 146: an employee has the right not to have action short of dismissal taken against him for certain specified purposes and, in sub-section (3), it provides that:

"An employee also has the right not to have action short of dismissal taken against him for the purpose of enforcing a requirement ... that, in the event of his not being a member of any trade union, or of a particular trade union or one of a number of particular trade unions, he must make one or more payments."

For the purposes of that sub-section, by sub-section (4) it was provided that:

" ... any deduction made by an employer from the remuneration payable to an employee in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union ... be treated as action short of dismissal taken against him for the purpose of enforcing a requirement of a kind mentioned in that subsection."

Section 148(1) provides that:

"On a complaint under section 146 it shall be for the employer to show the purpose for which action was taken against the complainant."

The words "for the purpose of" in section 148(1) mean an object which the employer desires or seeks to achieve, which is not to be confused with the purpose of an action which has a particular effect.

It was the Tribunal's view that section 146(3) did not apply because there was never any requirement that non-members of the TGWU must make payments. The suggestion that the Respondent operated any such policy was, in their view, without foundation and that the deductions could not have been made for that purpose. Therefore Mr Lemon's case failed.

The essential point of law raised by the Notice of Appeal in this case was that the Tribunal had misdirected themselves as to the statutory provisions. It was Mr Ibekwe's submission, on the Appellant's behalf, that sub-sections 146(3) and (4) were a self-contained part of the legislation and that no further enquiry under section 148 was called for. If that were right it would mean that sub-section 148(1) was incorrectly drafted because if sub-sections 146(3) and (4) were self-contained and there was no further enquiry to be made of the purpose for which the action was taken then sub-section 148(1) should have excepted from its application sub-sections 146(3) and (4). It seems to us, on the plain and ordinary meaning of the words in sub-section 146(3), that the facts in this case did not justify their application.

Like the Industrial Tribunal, we are satisfied that the deductions could not have been made for the purpose which was contended for. The reasons why the deductions were made had nothing whatever to do with an attempt to extract money from the Appellant on the basis that he was not a member of a trade or a particular trade union, rather, it was the incompetence of management who believed that a mandate which had been given authorising deductions from wages remained in force until after it was countermanded by the employee. Accordingly it seems to us that that part of the Appeal is unsustainable in law and it follows therefore that there is no need to consider the second submission, which only arises if the first were arguable. The Appeal will therefore be dismissed.