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20/06/1996

Diakou v Islington Unison ‘A’ Branch

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Employment Appeal Tribunal

An applicant's appeal from an order refusing her leave to amend her originating application to add a complaint of victimisation by union members on the grounds of her race was refused where s.2 and Part II of the Race Relations Act 1976 did not make the alleged act unlawful, and she was not a member of the union at the relevant time for the purposes of s.11.

An appeal by an applicant from a decision of a Chairman sitting alone at the Stratford Industrial Tribunal refusing her leave to amend her originating application ('IT1'). The undisputed facts were that the applicant, who was employed as a neighbourhood manager by Islington LBC, presented her IT1 on 14 September 1994 alleging racial harassment by the respondent ('the union') through the systematic dissemination of misinformation about alleged instances of misconduct perpetrated by her. The tribunal held a preliminary hearing to determine whether her new claim of victimisation, based on an alleged incident in February 1995, could be brought under s.11 Race Relations Act 1976. It found that: (i) s.11 of the Act was the only section under which the applicant could found a claim; (ii) that she could not complain of an alleged incident after her resignation from the union on 21 December 1992 and; (iii) she was not entitled to pursue her victimisation claim because it was made after the issue of her IT1. Further, it was held that she had no cause of action against the union for vicarious liability in respect of actions taken against her by members (distinct from employees) of the union and against the individual union officials she sought to add as respondents there was insufficient evidence for a claim of victimisation.

HELD: (1) The tribunal had not erred in dismissing the applicant's complaint of victimisation, whether brought by way of amendment or as a new action, against both the union and the individual officers. (2) The Chairman had erred in making his comment about the evidence but this did not make his overall conclusions legally incorrect. (3) Following the analysis of s.54 of the Act in Nagarajan v Agnew (1995) ICR 520, the Chairman's decision to refuse a review hearing because it had no prospects of success disclosed no error of law. (4) Section 2 and Part II of the Act did not make the alleged act unlawful. (5) Section 11 of the Act was the only section under which the applicant could succeed but victimisation was not one of the acts unlawful as against a non-member and she was not a member of the union in February 1995. (5) Sections 32 and 33 of the Act did not assist the applicant because where the principal (the union) was not legally liable, neither was the agent.
Appeal dismissed.

The applicant appeared in person. Ian Scott instructed by the Director of Legal Services, UNISON, for the respondent.

[1997] ICR 121
diakou.pdf

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