Under section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992, trade unions are allowed to expel a member in only one of two circumstances.

The first is that the member no longer satisfies a membership requirement (such as being employed in a specific industry); and the second that the expulsion is because of the member's conduct. The legislation specifically precludes trade unions from expelling members for membership of a political party.

In ASLEF v Lee, the employment appeal tribunal (EAT) overturned a tribunal's decision that Mr Lee had been expelled from the union purely because of his membership of the British National Party (BNP).

What were the allegations against Mr Lee?

On 17 April 2002, an official of the union wrote to Mr Rix, the General Secretary, saying that Mr Lee, a union member, was standing for the BNP in council elections in Bexley. 
Attached to the report was a fax from Bexley Council for Racial Equality which made a number of allegations against Mr Lee about his conduct. He was also said to have been a regular columnist for an extreme right-wing publication called Spearhead.

What did the union do?

The president of the executive committee, Mr Samways, put a motion to the committee to expel Mr Lee from the union. He emphasised the fact that he was proposing the motion, not because of Mr Lee's member-ship of the BNP, but because his conduct had brought the union into disrepute.

The executive agreed and the General Secretary then wrote to Mr Lee on 24 April 2002, expelling him. Mr Lee complained to the tribunal that his expulsion was due to his membership of the BNP.

What was the decision of the tribunal?

The tribunal decided that the union expelled Mr Lee because of his BNP membership and that it was therefore unlawful.

What did the EAT decide?

The EAT said that the tribunal had not been clear in its reasoning and had not addressed the central question - namely, who had been responsible for deciding to expel Mr Lee.

According to the EAT, it was the executive committee, with Mr Samways as the proposer of the resolution, who were responsible. Although it thought that Mr Rix's letter was ambiguous in the way it was worded, it needed to be considered in the overall context of the clear evidence put forward by Mr Samways.

The appeal tribunal said that it was crucial to distinguish between mere membership of a political party and someone's conduct as a member of that party, for which they can be expelled. It relied on the House of Lords' decision in Associated Newspapers Ltd v Wilson (1995, ICR 406).

It therefore decided that the case should be sent back to the employment tribunal to determine the reasons for the expulsion.

Another union, another BNP member

Potter v UNISON was also recently heard by the EAT, Mr Potter being another active member of the BNP.

He had been expelled by UNISON because of his conduct, but failed to apply in time to the employment tribunal to complain about his original expulsion. He then reapplied to join UNISON, but his application was refused on the grounds that he had previously been expelled.

This time he complained to an employment tribunal that his application for membership was refused because of his BNP membership. The employment tribunal disagreed, as did the EAT.

Comment

It is clear that members of the BNP are deliberately joining trade unions and then seeking to be expelled. If the expulsion is found to be unlawful, the minimum compensation that the union has to pay is £5,900. Trade unions, therefore, should take care and advice before proceeding with an expulsion.