United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R KELLER (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


JUSTICE LINDSAY (PRESIDENT)

1. We have before us an adjourned Preliminary Hearing in the matter Mr B Callahan and Mr J Carrigan v ASLEF. It is an appeal by those two individuals against the decision of the Certification Officer of 2 March 2001.
2. On this adjourned hearing Mr Rob Keller, by way of the ELAAS Scheme, has appeared for Mr Callaghan and Mr Carrigan and we are very grateful to him for the argument which he has advanced and so, indeed, should be the Appellants.
3. The Appellants, with others, made complaints about the conduct of ASLEF, their Union, and the Certification Officer carefully collected those and set them out as being 15 separate complaints. The decision came out on 2 March 2001, as I mentioned, and the Appellants appeal by Notice of Appeal of 12 April 2001.
4. That Notice of Appeal was defective in asserting what precisely were the errors of law that were alleged and it came before the Employment Appeal Tribunal for the first time as a Preliminary Hearing on 10 October last year and it was adjourned in order that Mr Callaghan and Mr Carrigan should clarify what errors of law were asserted.
5. On 19 October of 2001 the Appellants sent to the Employment Appeal Tribunal a pleasingly succinct statement indicating that, of the 15 decisions on 15 separate complaints dealt with by the Certification Officer, there were appeals only against five, which were identified as complaints 1, 7, 6, 8 and 12.
6. Now those are readily divisible into two, because, in the case of 1, 7 and 6, the Certification Officer found in the complainants' favour and made declarations that supported the case that they had advanced but in each case he added in his paragraph 1.15:

"I do not propose to make an enforcement order."

7. Under Section 108(b)(3) – and there is a corresponding provision in Section 55 – in each case of the Trade Union and Labour Relations (Consolidation) Act 1992, one finds, in 108(b)(3):

"Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or both of the following requirements –

(a) to take such steps to remedy the breach, or withdraw the threat of a breach, as may be specified in the order;

(b) to abstain from such acts as may be so specified with a view to securing that a breach or threat of the same or similar kind does not occur in future.

8. As to those words "unless he considers that to do so would be inappropriate", it obviously is a phrase that confers a wide discretion. So long as the Certification Officer has not taken into account matter which he should not have taken into account, or has left out of account that which he should have taken into account, or unless one can identify some principle of law in respect of which he has erred, (such as, for example, that the decision could be said to be perverse in the technical sense of being such that no Tribunal properly instructing itself could have come to such a conclusion) then, unless something such as that is shown to us, the error, if there were any error at all, would not be an error or law, which is the kind of error with which we can deal, but would be one of fact. We can only, of course, deal with questions of law.
9. Now, in each of the three cases, complaints 1, 6 and 7, the Certification Officer did explain why he was not minded to make an enforcement order and he dealt with that first of all generally and then more specifically. So looking at his general observations he said in 1.15:

1.15 "In respect of these breaches I do not propose to make an enforcement order. The reasons for this are, in respect of the first two breaches (complaint 1 and 7), the union's Special Assembly of Delegates (SAD) subsequently endorsed the decision of 23 March 2000 to suspend the union's Executive Committee. In respect of the third breach (complaint 6), although the union should have held an election, there was an unexpired part of the individual's term of office both in terms of Statute and rule and the union's SAD sanctioned the reappointment.

1.16 In short the union was in a mess, the executive was not functioning properly. The Vice President suspended the executive and called a meeting of the union's Parliament. That meeting endorsed his actions and other proposals for making the union operative. The union now appears to be working normally. It has sorted out its own problems. It is not necessary for me to intervene further on these matters.

10. That, as I say was part of a general approach. When he dealt with complaint 1 he said in his paragraph 2.35:

2.35 "However, in view of the events following the meeting of 23 March and the endorsement given at the SAD, I decline to make any enforcement order in respect of this breach."

11. As to complaint 6 he said:

2.76 "I find that the union, having accepted Mr Tyson's resignation, by reappointing him without the requirements of an election did beach its rules and statute. However due to the fact that Mr Tyson had an unexpired term of office both in terms of statute and union rule, and that the SAD sanctioned the reappointment, I make the declaration sought by the Applicants but decline to make an enforcement order in respect of this breach."

12. And as to complaint 7 he said:

2.82 "I therefore find that rule 13(1) was breached in this respect and made the declaration sought. However the actions of the VP on the 23 March were subsequently endorsed by the SAD as the Supreme Governing Body of the union and, from the date, the EC effectively operated and the GS was again, as required by rule, operating under EC control. I therefore decline to make an enforcement order in respect of this breach of rule."

13. We have heard Mr Keller on this point but it seems to us that it cannot be said that that reasoning discloses any room for an argument that the Certification Officer erred in law in concluding that an enforcement order would be inappropriate. The things that can be done by enforcement order, as one sees from the statute, are relatively limited and we cannot say that there is error of law in the Certification Officer's exercise of his discretion, namely in his deciding that it would be inappropriate to make an enforcement order. So far as concerned complaints 1, 6 and 7 we see no arguable error of law and dismiss the appeals even at this preliminary stage.
14. That leaves complaints 8 and 12. In these two cases the complaints made by the complainants were not upheld. Accordingly, of course, there was no declaration made in their favour. The complaint, as to 8 was this:

2.83 "Mr Callaghan and Mr Carrigan alleged that meetings of the EC held between March and October 2000 were inquorate because less than five members of the EC were present and that breached rule 16(1). That rule stated the EC should consist of eight members and that "…five members to form a quorum.".

2.84 The Applicants submitted daily minutes of the EC, for dates in April, June and August. Some of these it was alleged, showed meetings of the EC were held with less than five members of the EC being present. It was also alleged that disciplinary hearings by the EC with Mr Carrigan and Mr Glover were also held with less than five members of the EC present."

15. The nature of the complaint was set out also in the Certification Officer's decision and complaint 8 was that:

Complaint 8 The Executive Committee were in breach of Rule 16 Clause 1, between March and October 2001, because they conducted meetings with a quorum of less than five as required by the rules.

and then there is reference to the rules and then:

"and that same rule was breached in that "Disciplinary hearings were held with only three members present.".

and again there is then a reference to the rule.

16. As to this, the Certification Officer said in 2.87 and 2.88 as follows:

2.87 "I decline to make the declaration sought in respect of this alleged breach. The union were faced with an unusual and difficult situation with three of eight members of the EC suspended. A number of meetings of the EC were subsequently held with all five remaining officers present but it was inevitable that, at times, less than five would be present.

2.88 I believe there is nothing in the union's rules to prevent inquorate meetings being held, and decisions made, as long as those decisions are subsequently authorised at a quorate meeting of the EC. It was established that the union has a long history of operating through small sub-committees. It is for these reasons that I decline to make the declaration sought."

17. However, it seems to us that it may be argued that there is a significant difference between a quorate later meeting ruling truly afresh, exercising its own power in full, on the one hand, and a later quorate meeting that is to us Mr Keller's phrase "merely a rubber stamp for the earlier inquorate body.". That is one point.
18. It is arguable also, we think, secondly, that an inquorate body does not necessarily find its decision validated because:

"…it was inevitable that, at times, less than five would be present."

The proper answer might instead be that it should have been seen that more members should be appointed or that alternates should have been appointed.

19. Thirdly, it seems to us arguable that a long tradition of inquorate behaviour, if that is what the Certification Officer was relying on, does not necessarily legitimate it. So far as concerns complaint 8, Mr Callaghan and Mr Carrigan have, in our view, arguable points of law such that they may take to a full hearing.
20. As for complaint 12, that was described by the officer as follows:

Complaint 12. That the union had breached its Rule 29 Clause 6 in that the disciplinary hearing of Mr Ballard was before three members of the Executive Committee instead of five. Also that the same rule was breached on the 6 September 2000 by Mr Carrigan not being allowed witnesses to attend his disciplinary hearing thereby not affording him a full and fair hearing before the Executive Committee.

21. The complaint 12 truly falls into two parts; one is what one might call the "three members point" – three members instead of five – and the second could be described as the "witnesses point".
22. On the "three members" point the Certification Officer said in 3.18:

3.18 "The hearings of both men, following a decision of the Executive Committee, had been brought before sub-committees of three members of the EC. Both hearings had, after their conclusions, been reported to full meetings (of the remaining members) of the EC who had ratified the actions taken. The union further argued that it would have been unfair to the complainants (facing the disciplinary hearing) if Mr Tyson and Mr Madden had been members of the disciplinary panel. This was because the behaviour of the three charged members had been a major factor in the original resignation of Mr Tyson and Mr Madden, both from the EC and from the post of President of the union."

23. The reasons given for the decision by the officer were this:

3.20 "The EC, faced with the suspension of three of its eight members, decided to operate with a number of sub-committees. It did so (these include sub-committees to conduct the disciplinary hearings of Mr Ballard and Mr Carrigan). It is not uncommon for unions to set up sub-committees and to delegate responsibility.

3.21 Both sub-committees in due course reported their decisions back to full meetings of quorate meetings o the (remaining) five members of the EC who ratified the actions taken and the decisions reached."

24. But, as before, it seems to us to be arguable that one does not necessarily arrive at an acceptable decision of a full quorate body by way of its mere confirmation of the decision of an earlier inquorate body. The debate and the voting and the addresses that might be made in the two cases might significantly differ the one from the other, especially if it is not made clear to later quorate body that it is to be thoroughly unbound by and is at liberty to depart from and may debate afresh whatever the first inquorate body had resolved upon.
25. The Certification Officer concluded in his 3.22:

3.22 "I am therefore satisfied that both hearings, conducted before three members of the EC as sub-committees of the EC, were conducted within rule."

We believe that there is an arguable point, proper to go to a full hearing, that that was an error of law.

26. That leaves the "witnesses point", part of complaint 12. Under the heading "The Applicant's Case", just above paragraph 3.15 and moving on to paragraph 3.17, the Certification Officer says:

3.17 "Mr Carrigan in quoting the same rule argued that his disciplinary hearing was unjust because that rule stated he was entitled to question the union's witnesses and had not been given the opportunity to do so. Also that he had not been allowed witnesses in his defence…"

and then it goes on also to the "three member" point.

27. It seems clear enough from 3.17 that Mr Carrigan, so far as witnesses are concerned, was saying two things. First of all, that he should have been entitled to question the union's witnesses and, secondly, that he had not been allowed witnesses in his defence. But the way that the head complaint is framed as complaint 12 above suggests that Mr Carrigan was merely complaining of not being allowed witnesses to attend at his disciplinary hearing, thereby "not affording him a full and fair hearing before the Executive Committee."
28. That is perhaps a little ambiguous, but that suggests rather that, as the Certification Officer had understood it, the complaint was merely that Mr Carrigan had not been allowed to bring his witnesses to the Tribunal. In 3.19 the officer says:

3.19 "The union informed me that Mr Carrigan had been given the opportunity to `produce witnesses in his defence but had not done so on the day and time required."

29. Well, that, as an answer, does not answer that part of the complaint which in 3.17 had been shown to consist of Mr Carrigan complaining that he had not been able to question the union's witnesses, which is quite a different point. We do therefore see that there is an arguable error of law in that second part, the "witnesses" part of complaint 12.
30. Accordingly, as we see it, the whole of complaint 8 and the whole of complaint 12, or the appeals in respect thereof, are fit to go to a full hearing but the rest of the Notice of Appeal, which is complaints 1, 6 and 7, should be dismissed here and now. Skeleton arguments on 8 and 12 should be produced and exchanged between the parties and sent to the EAT not less than 14 days before the hearing. The matter is to be listed as Category B. I will have a word with Mr Keller but we would have thought that an hour and a half would suffice.