Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 912/06;

1030/06

CLAIMANTS: James Kincade Arbuckle

Richard Egan

RESPONDENTS: 1. National Association of School Masters' Union of

Women Teachers

2. Ms C Keates

DECISION

The unanimous finding of the Tribunal is that the respondents did not unjustifiably discipline the claimants and their claims are dismissed.

Constitution of Tribunal:

Chairman: Mr Greene

Panel Members: Mr Cecil

Mr Millar

Appearances:

The claimants were represented by Mr G S Rafferty, Belfast Centre for the Unemployed.

The respondents were represented by Mr J O'Hara QC, instructed by Thompsons McClure Solicitors.

Sources of Evidence

1. The Tribunal heard evidence from the claimants and their witnesses Brendan Morgan, Frederick Browne, F Milena Lee and Mairead Breen and for the respondents from Jeremy Bartlett and Susan Rodgers. The Tribunal also received 11 bundles of agreed documents amounting to 789 pages and two legal submissions of 21 pages.

The Claim and Defence

2. At the outset the Tribunal was informed that the claimants' claim against the second respondent was not being pursued and she is dismissed from these proceedings, by consent.

Both claimants claimed that they had been unjustifiably disciplined by the remaining respondent. The respondent denied the claimants' claims.

The Issues

3. (1) Whether the respondent unjustifiably disciplined the claimants contrary to Article 31(1) of The Trade Union and Labour Relations (Northern Ireland) Order 1995.

(2) Whether a determination was made or purportedly made under the rules of the union by an official of the union or a number of persons including an official that the claimants should be subjected to some other detriment.

(3) Were the claimants disciplined for conduct or believed conduct involving either;-

(a) asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it … has contravened … a requirement which is or is thought to be, imposed by or under the rules of the union or any other agreement or by or under any statutory provision or any rule of law, or

(b) encouraging or assisting a person to make or attempt to vindicate any assertion as mentioned in 3(3) (a) above.

Findings of Fact

4. (1) The first claimant has been a member of the respondent union, the National Association of Schoolmasters' Union of Women Teachers (NASUWT) for over 25 years. He has served as Honorary Secretary of the union's Northern Ireland Executive Council (NIEC).

(2) The second claimant has been a member of the respondent union (NASUWT) for over 27 years. He has served in a range of elected offices, including Secretary of his local South Down/South Armagh Association.

(3) The claimants' claim that they have been unjustifiably disciplined and have suffered victimisation, harassment, public humiliation, embarrassment and detriment because they sought to exercise their rights or to assist those exercising their rights under the law to bring complaints to the Certification Officer and the Industrial Tribunal.

The claimants became aware of the alleged unjustifiable discipline with;-

(a) the making of a public statement, critical of the claimants, by the respondent's National Officers on 25 February 2006,

(b) the publication of that statement in the May 2006 edition of the respondent's newspaper in Northern Ireland, 'Platform',

(c) the public comments by the General Secretary Chris Keates at the respondent's 2006 Conference, critical of the claimants, and

(d) the publication of the General Secretary's comments, made at the 2006 Conference critical of the claimants, in the Spring 2006 edition of the respondent's newspaper 'Teaching Today'.

(4) The respondent denies that the claimants' were unjustifiably disciplined or that they have suffered victimisation, harassment or detriment. The respondent did not pursue its allegations that the claimants' claims were misconceived or that they were out of time.

(5) The first claimant brought a claim to the Certification Officer on 19 May 2003. The claim was heard in 2004 on 24 and 25 June and 23 and 24 August. He made six complaints.

The Certification Officer upheld three of his complaints, ie that the first claimant had been denied a fair and impartial disciplinary hearing; that the respondent had breached its rules in the initial administration of the complaint; and that the respondent had breached its rules in removing the first claimant from his position as Honorary Secretary of NIEC.

(6) The first claimant then brought a claim to the Industrial Tribunal on 13 June 2003 claiming he was subjected to unjustifiable discipline and it was heard in 2006 on 19, 20, 22, 26 and 27 June. Though this was a distinct claim from that before the Certification Officer it was a complaint arising from the same disciplinary action about which he had received a favourable decision from the Certification Officer. The Industrial Tribunal dismissed his claim.

(7) The second claimant represented the first claimant at the internal disciplinary hearings and was a witness in his favour before the Certification Officer.

Shortly after the first claimant's claim before the Certification Officer the respondent removed the second claimant from the South Down/South Armagh Association of NASUWT as his workplace was in the area of the Craigavon/Armagh Association and not South Down/South Armagh. As a consequence he was no longer able to remain as Secretary of the South Down/South Armagh Association.

(8) On 2 December 2004 the second claimant brought a claim to the Certification Officer. In the claim he alleged that his removal from the South Down/South Armagh Association was a breach of the rules of NASUWT because he had a workplace in that area and that his removal represented the imposition of a disciplinary sanction for assisting the first claimant.  The hearing before the Certification Officer took place on 6 December 2005 and 1 and 2 March 2006 and he upheld the first complaint, which was conceded by the respondent, and dismissed the second complaint.

Despite a number of requests from the respondent, prior to the first day's hearing before the Certification Officer on 6 December 2005, the second claimant did not provide details of his workplace within the South Down/South Armagh Association until 30 November 2005. On 1 December 2005 the respondent conceded the second claimant's first complaint.

(9) The second claimant then brought a claim before the Industrial Tribunal on 10 February 2005 which has not yet been determined.

(10) At the second claimant's hearing before the Certification Officer on 6 December 2005 the parties agreed, inter alia, that the respondent would publish in the next issue of Platform, scheduled for March 2006, an unreserved apology to the second claimant from the General Secretary, in terms agreed between the parties on 6 December 2005.

(11) While these complaints from the claimants and others were going on before the Certification Officers and employment tribunals in England and Northern Ireland the respondent responded in a number of ways. The respondent decided that it would vigorously defend the union in the complaints before the Certification Officer and employment tribunals because it believed the union's reputation was at stake and that it would use the very best legal practitioners.

Apart from that response to the legal actions the respondent followed three approaches to the issues generally. Initially the respondent maintained silence on the subject, out of respect for the legal proceedings, and conscious also that, depending on the outcome of the legal proceedings, officers or members of the National Executive might be called upon to carry out actions or responsibilities in connection with these matters and therefore the issues should not be discussed at union meetings save for a general report. The issues persisted however.

Secondly conciliation was attempted as between the respondent and the claimants but this was unsuccessful.

Thirdly as the National Officers and National Executive came under pressure in 2005 from members arising from newspaper articles, discussion and rumours of persons or associations defecting to other unions, which the respondent regarded as untruthful or inaccurate, the National Officers drafted a statement on the subject to reassure members of the respondent union.

(12) Following discussions among the National Officers, and after having taken legal advice, a statement on behalf of the National Officers was prepared. Though the delivery of the statement was scheduled to take place in January 2006 at a meeting of the NIEC it was not delivered as the meeting was inquorate. The delivery of the statement was deferred to a further meeting of the NIEC on 25 February 2006.

(13) The NIEC meeting was scheduled for 25 February 2006. At the meeting the second claimant was to read a statement. The National Officers were also to read their statement.

On the 25 February 2006 the meeting was inquorate. Lorraine Strong, the NIEC president decided, however, to proceed with the meeting. Two national officers, Jerry Bartlett, Deputy General Secretary and Pat Lerew, Ex President were in attendance.

The second claimant read his statement out. Questions or comments on his statement were not permitted.

Immediately thereafter Pat Lerew read the statement from the National Officers. No objections were raised to the National Officers' statement by the second claimant or others nor were any questions asked.

(14) In May 2006 Platform was published. In the letters page entitled,

'Minority Viewpoints …

The part of Platform where members have their say on the issues of the day'

the respondent published the statement from the National Officers delivered on 25 February 2006 and the General Secretary's letter of apology to the second claimant alongside.

Fred Brown, the editor of Platform, had asked Pat Lerew for permission to publish the statement from the National Officers. That request was considered and the National Officers directed that the statement be published in a statement form, as it had been delivered.

(15) Platform is sent to 11,000 members in Northern Ireland and would be read by others not in the respondent union. The statement was critical of three Northern Ireland members. The statement did not name the three individuals. The respondent accepts that the three Northern Ireland members were the claimants and Brendan Morgan.

Brendan Morgan suggested that about 200 members in Northern Ireland would have been able to identify the three Northern Ireland members as the claimants and himself.

(16) The statement in its opening paragraph states;-

"… I would like to make this statement concerning the activities of three Northern Ireland members in recent months."

While there are other comments in the article which could suggest a longer period is in issue the Tribunal accepts that this comment "in recent months" is not accurate and could mislead the reader. However the Tribunal believes this inaccuracy not to be of any significance.

(17) The statement goes on to enumerate four actions that the three members have taken;-

"(1) sent to the Union a huge volume of letters and e-mails;

(2) progressed complaints before the Certification Officer for England and for NI and appear to be preparing to progress others;

(3) made complaints to the Industrial Tribunals in NI;

(4) made repeated applications for disclosure under the Data Protection Act."

A "huge volume of letters and e-mails" lacks precision. Huge may mean different things to different people. The respondent believed that a huge number of letters and e-mails was sent.  The second claimant accepted that comment. The first claimant did not accept it as accurate. The evidence adduced, on behalf of the claimants, of the number of letters and e-mails sent by the claimants did not include the volume of those sent by the third Northern Ireland member, Brendan Morgan. The Tribunal accepts that in the circumstances the maker of the comment could properly use "huge" to describe the volume of letters and e-mails sent.

The remaining three comments are correct.

(18) In the statement the National Officers go on to say that they accept the right of members to question the rules and activities of the union in a proportionate manner. They then make their criticism of the three Northern Ireland members when they state;-

"… However, it is the honest opinion of the National Officers that the way in which these members have gone about their business has been disproportionate when set against what has been actually achieved."

Specifically the National Officers claim that the actions of the three Northern Ireland members have,

"… resulted in a huge expenditure of time and money which should have been spent in ways more beneficial to the Union and its members."

In the statement the National Officers elaborate further when they say;-

"The cost to the Union in defending these actions has amounted to an estimated £100,000 + in legal fees. These bald figures do not, of course, take into account the colossal amount of time which National Officers, members of the National Executive and senior staff have had to devote to dealing with these matters, time which, in our view, would have been better devoted to servicing the needs of members."

(19) The Tribunal accepts that legal costs are incurred depending on whether lawyers are used; the seniority of the lawyers employed, the duration of the legal proceedings and the attitude of those making claims, in terms of what claims they make and how they prosecute them.

(20) At the respondent's Conference in Spring 2006 John Hendy QC spoke about a Union Freedom Bill, of which he was the architect, which had been endorsed by the TUC and had been subject to an Early Day Motion at the House of Commons. The Bill is designed to give trade unions more freedom and rights and would give legal protection from dismissal to any workers taking lawful industrial action and in certain circumstances permit solidarity industrial action by another group of workers. The purpose of the Bill was to put pressure on the Labour Government to repeal anti-trade union laws introduced by the Thatcher Government.

(21) The respondent's General Secretary, Chris Keates, responded to John Hendy's address. In the course of her remarks, as reported in Teaching Today, she stated;-

"As a membership organisation we have less control than a golf club when seeking to exercise internal discipline.

"It is a travesty that we cannot easily expel from our ranks those who openly subscribe to a racist and fascist agenda, or those who undermine their colleagues engaged in lawful action following a democratic ballot.

"The present laws are a charter for the disaffected; this Union alone has seen thousands of pounds of members' money being used to defend itself against a handful of members using anti-trade union laws to disrupt and distract the Union from the crucial work of protecting the interests of members."

The report on the General Secretary's comments at the Spring Conference of 2006, set out above, was carried in the respondent's newspaper Teaching Today in May 2006.

(22) On 15 June 2006 the first claimant wrote to the General Secretary complaining of the two published items. On 5 July 2006 the second claimant wrote to the General Secretary to complain about both published items.

The first claimant was not at the NIEC meeting on 25 February 2006. He only became aware of the contents of the statement delivered by Pat Lerew when he read it in the May edition of Platform. The second claimant had made a reference, in casual conversation, about it to the first claimant in March 2006. Although he was aware of both publications by 13 May 2006 he did not complain until 18 June 2006 nor did he seek to exercise the right of reply offered in Platform.

The second applicant was present on the 25 February 2006 to hear the statement from the National Officers. He did not object at the time it was made or afterwards. Subsequently he read it in the May edition of Platform. He did not attempt to exercise the right of reply offered by Platform to its readers. He became aware in the middle or late June 2006 from the first claimant of the article in Teaching Today but did not see a copy until after he had written his letter of complaint of 5 July 2006. The letter of 5 July 2006 was the first complaint that the second claimant made to either item. He explained that the reason he had not done anything earlier was that he was ill for four weeks from 10 March 2006.

(23) Both claimants adamantly told the Tribunal that the article in Teaching Today identifies them and links them to those subscribing to a racist and fascist agenda. Neither specifically complained about this reference in their letters of complaint though they did so in their originating claims.

The Law

5. (1) A trade union member has the right not to be unjustifiably disciplined by the union. (Article 31(1) The Trade Union and Labour Relations (Northern Ireland) Order 1995).

(2) An individual is disciplined by a union where a determination is made, or purportedly made, under the rules of the union or by an official of the union or a number of persons including an official to subject the individual to a detriment. (Article 31(2)(f) The Trade Union and Labour Relations (Northern Ireland) Order 1995).

(3) An individual is unjustifiably disciplined if the actual or supposed conduct which constitutes the reason or one of the reasons for disciplining him is by;-

(a) asserting (whether by bringing proceedings or otherwise) that the union or an official or a representative has contravened or is proposing to contravene a requirement which is or is thought to be imposed by the rules of the union or any statutory provision or rule of law, or

(b) encouraging or assisting a person to make or attempt to vindicate any such assertion referred to in paragraph 5(3)(a) above. (Article 32(1) and (2)(c) and (d) of the Trade Union and Labour Relations (Northern Ireland) Order 1995).

(4) Article 32 applies to conduct which involves the Certification Officer being consulted or asked to provide advice or assistance.

(5) Where a Tribunal finds the complaint well founded it shall make a declaration to that effect. (Article 33(3) The Trade Union and Labour Relations (Northern Ireland) Order 1995).

(6) The act of discipline is the determination or purported determination, the decision, that the member be treated in a certain way, not the carrying out of that decision. Discipline occurs at the date of judgement not execution. A member may be unjustifiably disciplined without suffering any actual detriment other than the stigma of condemnation. (Harvey on Industrial Relations and Employment Law M [2859].

A determination is made on the date when the union makes the decision not when the member is notified (National and Local Government Officers' Association v Killorn [1990] IRLR 464, EAT). A member may suffer unjustifiable discipline without even being aware of the fact. (Harvey on Industrial Relations and Employment Law M [2860]).

(7) Detriment is where the treatment of an individual is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment. An unjustified sense of grievance cannot amount to "detriment". It is not necessary to demonstrate some physical or economic consequence. (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR paragraph 35 Lord Hope).

Application of the Law and Findings of Fact to the Issues

6. (1) There was not any objective evidence before the Tribunal that the union or an official of the union or a group involving an official made a determination that the claimants should be subjected to a detriment.

The Tribunal accepts that the National Officers could constitute such a group.

(2) The parties were agreed that a determination to subject the claimants to a detriment could be inferred if the statements were to the detriment of the claimants.

The Tribunal accepts that this approach is an appropriate one in this case.

(3) Though the claimants were not named in the statements, as delivered orally or in written form in Platform and Teaching Today, the Tribunal accepts that up to 200 union activist members might have been able to identify the claimants.

The Statement from the National Officers read on 25 February 2006 and printed in Platform in May 2006

(4) As stated above "in recent months" could be misleading but the Tribunal does not attach significance to that. In so concluding the Tribunal was influenced by the following matters;-

(a) It is a matter of debate whether "in recent months" is better or worse from the claimants' point of view than for example, "in recent years".

(b) The timescale set out by the phrase "in recent months" does not distort the point the National Officers are making.

(c) There is some merit in the point that the content of the statement as a whole and other phrases used could suggest a much longer period of time is being considered.

(5) As set out above the description of the letters and e-mails as constituting "a huge volume" is a legitimate phrase for the reasons set out above.

(6) The other three specific comments about the activities of the claimants and Mr Morgan are correct.

(7) Setting out that the cost in legal fees, "… has amounted to an estimated £100,000 + "does not imply that over £100,000 has already been spent because it does not so state, which could have been done had the writer intended to communicate that point.

Secondly the use of "estimated" before the £100,000 and "+" after it strongly suggests that the precise cost is not yet known. To include in an estimate of costs for any organisation costs that have been incurred but not yet paid or costs for which the actual bill has not arrived or been quantified but is awaited is a legitimate and indeed a proper accountancy practice.

The statement in relation to legal fees is a legitimate one.

(8) The statement declares itself to be "the honest opinion of the National Officers". A proper question can be posed as to whether or not this amounts to a "determination" for the purposes of Article 31(2) of The Trade Union and Labour Relations (Northern Ireland) Order 1995. However this point was not canvassed before the Tribunal and the Tribunal does not make any finding on the point.

(9) The thrust of the statement from the National Officers is a criticism of the proportionality of the claimants' actions when judged against their achievements. It is not a criticism of them for bringing complaints before the Certification Officer or employment tribunals. This point is made in the statement itself.

While there could be a conspiracy against the claimants or the statement could be part of a strategy by the National Officers designed to disadvantage the claimant there is no evidence to support this view. In addition the Tribunal had the benefit of hearing from two of the National Officers and found their evidence to be honest and frank.

(10) The positioning of the National Officers' statement and the letter of apology to the second claimant alongside each other was a deliberate act. No evidence was adduced which establishes that this positioning of the two items was done either to identify the second claimant as one of the three Northern Ireland members, about whom the statement was made, or to undermine the effect of the General Secretary's unreserved apology to the second claimant.

Nor does the reading of the two articles inevitably lead one to the conclusion that the positioning of the two articles was for either of the above reasons.

The claimants' belief that this occurred for either of the above reasons is a possibility. However it seems to the Tribunal equally possible that the casual reader might conclude that whoever the three Northern Ireland members were they did not include the second claimant who received an unreserved apology from the General Secretary.

The comments of the General Secretary at the 2006 Conference and printed in Teaching Today in May 2006

(11) The General Secretary's comments at the 2006 Conference were not provided to the Tribunal. It may well be that they were made ex tempore and not from a prepared script. The only details before the Tribunal of those comments are as provided in the article in Teaching Today in May 2006. As this record of her comments was not challenged the Tribunal accepts it as an accurate account of her comments.

(12) It is clear from the article that all of the General Secretary's comments are not included. Nor does the article purport to set out all her comments or suggest those portions quoted were delivered consecutively or sequentially. The article quotes three sentences uttered by the General Secretary.

(13) In her comments the General Secretary sets out a problem, from her point of view, arising from the current legal framework within which trade unions operate;-

"As a membership organisation we have less control than a golf club when seeking to exercise internal discipline."

It was explained to the Tribunal that whereas a golf club can expel a member for a sufficient breach of the club's disciplinary rules and that concludes the matter if a trade union attempts to do that the disciplined trade unionist has a right of appeal to the Certification Officer who can overturn the disciplinary sanction imposed.

The General Secretary then gave two examples of what she clearly regarded as a unsatisfactory consequence of that restriction on the union's control of its members when she stated;-

"It is a travesty that we cannot easily expel from our ranks those who openly subscribe to a racist and fascist agenda, or those who undermine their colleagues engaged in lawful action following a democratic ballot."

The article then concludes with the General Secretary setting out a second problem with the existing legal framework, as she sees it, and the consequences of the problem;-

"The present laws are a charter for the disaffected; this Union has seen thousands of pounds of members' money being used to defend itself against a handful of members using anti-trade union laws to disrupt and distract the Union from the crucial work of prosecuting the interests of members."

(14) The "handful of members" referred to by the General Secretary includes the claimants and others.  The respondent has not disputed this.

(15) The Tribunal is not persuaded that the second sentence and its reference to "… those who openly subscribe to a racist and fascist agenda..." is intended to be read as referring to the "handful of members" mentioned in the third sentence. In so concluding the Tribunal took into account the following matters;-

(a) The ordinary reading of both sentences does not link the two sentences as referring to the "handful of members" as they are in separate paragraphs.

(b) The punctuation, by commencing with inverted commas suggests each sentence is a separate point.

(c) Neither claimant challenged this statement when it was made nor immediately after it was published in May 2006.

(d) The first claimant did not complain about Teaching Today until 18 June 2006 and in his letter of complaint made no reference to the association of him with racism or fascism about which he complains to the Tribunal.

This raises the question whether this matter was in the mind of the first claimant at all as something about which he should complain. However the first claimant did state to the Tribunal that in his letter of complaint he selected what he thought was the most important item.

(e) The second claimant did not complain about Teaching Today until 5 July 2006. At that time he had not seen Teaching Today, he told the Tribunal, and was reliant on what he learned of the article from the first claimant.

In his letter he makes no reference to racism and fascism, presumably because the first claimant did not tell him about that or if he did that he did not regard it as referring to him or if he did that he did not regard it as of sufficient importance to include it in his letter or complaint.

(f) The second sentence of the General Secretary's comments also refers to "those who undermine their colleagues engaged in lawful action following a democratic ballot.

At no stage have the claimants alleged that that part of the comments refers to them. This is hard to understand. If it is the positioning of the two sentences by the General Secretary that associates the claimants with racism and fascism then it should also associate them with undermining those engaged in lawful action following a democratic ballot.

(16) The article in Teaching Today, as it refers to the claimants, is also about the General Secretary's view that the actions of the handful of members are disproportionate, though that is not overtly stated.

(17) The National Officers are entitled to hold the opinion that the actions of the claimants are disproportionate and it is a legitimate opinion to express.

A valid way to assess whether something is disproportionate is to measure the achievements against the cost in terms of finance, time and effort of realising those achievements. The National Officers made such an evaluation. 

(18) There are examples of what could be regarded as technical or procedural complaints in the Certification Officer's findings on 24 May 2005 in the first claimant's complaints at paragraphs 2.61, 2.62, 2.63, 2.72, 4.12, 5.6, 6.7 and 7.6. Undoubtedly the pursuit of these technical and procedural matters elongated the legal proceedings and increased the cost in terms of finance, time and effort to the respondent.

(19) Similarly the second claimant elongated his claim before the Certification Officer by withholding information that could have resolved his first complaint altogether and certainly at a much earlier stage and by advancing arguments that lacked credibility. (See Certification Officer's findings of 27 June 2006 at paragraphs 75, 79, 83, 84, 87, 88 and 89).

(20) The words spoken and published in Platform and Teaching Today represent criticism of the claimants for a lack of proportionality between what has been achieved and the cost of realising those achievements in terms of finance, time and effort. These criticisms are the opinions of the National Officers and the General Secretary.

While these published words could constitute a detriment to the claimants, the views expressed are in the Tribunal's view opinions that are reasonable to hold and have a basis in fact. Such a detriment could amount to discipline for the purposes of Article 31 of The Trade Union and Labour Relations (Northern Ireland) Order 1995 flowing from a determination by the National Officers.

(21) As these published criticisms do not relate to the conduct of the claimants in bringing complaints to the Certification Officer in Northern Ireland or England or presenting claims to industrial tribunals or assisting or encouraging others to do so or by asserting that the respondent had contravened its rules or other statutory provision or rule of law the claimants have failed to establish that they were unjustifiably disciplined for the purposes of Articles 31 and 32 of the Trade Union and Labour Relations (Northern Ireland) Order 1995.

(22) Accordingly the claimants' claims of unjustifiable discipline are dismissed.

Chairman:

Date and place of hearing: 21, 22, 23, 24 and 25 May, 2, 3, 4 and 5 July, 20, 21, 29 and 30 August 2007 Belfast.

Date decision recorded and issued to parties: