United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR OLIVER SEGAL (Of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW
For the Respondent	THE APPELLANT IN PERSON

SUMMARY

Appellant was disciplined by her Union and debarred from any union office for 5 years. The Union subsequently determined that persons subject to penalties including debarring from office should not be entitled to attend the National Delegate Conference as members of the public. This was a decision made to preserve order following disturbances the previous year. Appellant complained to the Certification Officer under Section 108A TULR(C)A 1992. He upheld her complaint. On appeal: held that the Union's decision was not a disciplinary penalty imposed on Ms Gallagher and her complaint should have been dismissed.


 


HIS HONOUR JUDGE J R REID QC

1. This is an appeal by Unison from the decision dated 8 April 2005 of the Certification Officer (CO) made on the application of Ms Gallagher under section 108A (1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act). The CO determined that the Union acted in breach of its disciplinary rules (specifically Rule I: 9.2) by the decision of the Union through its National Executive Council (NEC) to uphold a recommendation that members and ex-members of the Union who were or had been subject to certain sorts of disciplinary action should be debarred from attending as visitors at the 2004 National Delegate Conference (NDC). That decision affected Ms Gallagher (along with several other members and ex-members) in respect of her application to attend the NDC in 2004, since she had been banned from holding office within the union for 5 years following disciplinary proceedings in March 2001. The decision also affected her in relation to her opportunity to attend the NDC in 2005. The essence of her complaint was that the decision at the disciplinary proceedings had been final and binding and the NEC decision unlawfully added an additional penalty to that which had been imposed on her.

The Facts

2. In March 2001 Ms Gallagher was disciplined by the Union and debarred from holding any Union office for a period of 5 years. This decision was upheld by the Employment Tribunal which rejected her claim that the penalty had been imposed in breach of section 64 of the Act. The then Head of Constitutional Matters wrote to Ms Gallagher's branch giving examples of the types of activity that Ms Gallagher was debarred from undertaking by this decision. The letter did not suggest that Ms Gallagher's disciplinary penalty debarred her from attending the NDC as a visitor. In the years 2001, 2002 and 2003 Ms Gallagher attended the Union's NDC as a visitor. In 1999, the NDC approved a policy whereby visitors to the NDC who are members of the Union had a right not to be charged for visitor credentials. Visitors to the NDC who were not members were charged £25.
3. On 8 January 2004 a meeting took place at the Union's head office in London to begin preparations for the 2004 NDC. During the course of this meeting concern was expressed about incidents at the 2003 Conference. One incident involved an expelled former member who had gained unauthorised access to the Conference and who had caused a disturbance. The other involved a member who had been debarred from office, who had appeared on the floor of the Conference without authority and who had also caused a disturbance. With a view to preventing disruption of the forthcoming conference, the meeting took an administrative decision that members who had been expelled or debarred from holding office should not be allowed to attend the NDC as visitors. No reference was made (or consideration given) to Ms Gallagher's position
4. As a result when Ms Gallagher's applied to be a visitor at the 2004 NDC she was informed that she was not eligible for a visitor pass to the 2004 NDC. At a meeting of the NEC on 10 June 2004, questions were asked about the administrative decision and it was agreed that the matter be reviewed and advice sought from the Union's legal officer. A report was prepared which was presented to a meeting of the NEC held before the beginning of Conference. The resolution that was eventually carried applied a policy of exclusion not only from the NDC but all UNISON Conferences.
5. The General Secretary wrote to Ms Gallagher informing her that the policy of exclusion had been upheld by the NEC. He went on to state that the NEC report did not make specific reference to any individual member, that the policy did not constitute a disciplinary sanction against any individual and that the policy in relation to the 2004 NDC was applied consistently across the Union. After further correspondence with her Union, Ms Gallagher complained to the CO on 29 September 2004.

The Jurisdiction of the CO

6. Section 64 of the Act provides for the right of a union member not to be "unjustifiably disciplined" by his or her union. Sub-section (2) provides, so far as relevant for present purposes:

"(2) For this purpose an individual is "disciplined" by a trade union if 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 that - ...

(d) he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union ...

(f) he should be subjected to some other detriment;

and whether an individual is "unjustifiably disciplined" shall be determined in accordance with section 65.

7. Section 65 confines the scope of "unjustifiable discipline" to occasions where

"(1) ... the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is conduct to which this section applies, or

(b) something which is believed by the union to amount to such conduct.."

The following three sub-sections contain an exclusive definition of the relevant "conduct", which includes such matters as not participating in industrial action, whistle-blowing, being a member of another union, and working with non-union members. It is clear that, subject to the other requirements of the Act, it is not unlawful for a union to deprive a member of access to any benefit made available to him or her by reason of his or her membership, or to subject him or her to any other detriment, unless the reason for such treatment is one of the prohibited reasons set out in section 65. Indeed Ms Gallagher is a case in point. Ms Gallagher brought proceedings against the Union in the Employment Tribunal, contending that the disciplinary penalty of a ban from office had been imposed upon her in contravention of s. 64. The claim was dismissed on the basis that the conduct which constituted the reason for that discipline was not within the scope of s. 65.

8. Section 108A of the Act (introduced by the Employment Relations Act 1999) provides that

"(1) A person who claims that there has been a breach ... of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect...

(2) The matters are -

(a) the appointment or election of a person to, or the removal of a person from, any office; disciplinary proceedings by the union ...; the balloting of members on any issue other than industrial action; the constitution or proceedings or any executive committee or of any decision-making meeting; ..."

9. The scope of the CO' s jurisdiction in respect of s. 108A "relating to .. disciplinary proceeding" has been considered in two decisions of the CO: Ryan v UNISON [Cases D/5-48/01 ] and Dennison v UNISON [Case D/12/03]. In Ryan the issue of principle was whether a union which imposed on a member a disciplinary penalty (prescribed as such in its rules) without undertaking a formal disciplinary process could be said to have done so in breach of its rules relating to disciplinary proceedings. The CO held it to be determinative in the applicant's favour that the penalty was "punitive and a penalty of a nature mentioned in Rule 18 ...It clearly subjected Ms Ryan to action that was, in its very nature, one of discipline ... [it] is mentioned in the rules only as a disciplinary penalty ..." (para 2.11 of the decision). In Dennison, the issue of principle was whether a union which withheld an important benefit of union membership (the provision of legal assistance) could be said to have done so in breach of its rules relating to disciplinary proceedings if the purpose of withholding that benefit was on analysis a "disciplinary purpose". Where such a benefit of membership is withheld, the CO pointed out that "the more usual analysis is that there has been a breach of a rule outside of the scope of the [CO 's] jurisdiction under section 108A ..."; and he directed himself to "whether this is one of those exceptional cases in which the action taken against a member, which could have been taken lawfully under a non-disciplinary rule was nevertheless taken for a disciplinary purpose in breach of the rules which relate to disciplinary proceedings " (paras. 24-25 of the decision). On the facts he concluded that it was one of the "exceptional" cases where the purpose of withholding the provision of legal assistance had been a "disciplinary" one: "Mr Roberts decided to suspend the Applicant's legal assistance as a disciplinary penalty ... this was a deliberate imposition of a disciplinary penalty " (para. 28). Neither of these decisions was subject to appeal.

The CO's decision

10. The CO accepted that the Union's rules do not provide that its members have the right to attend the NDC as visitors. The NDC is a meeting of delegates, not a meeting of members. However he referred to rule P.4.1 of the Union's Rules (a part of the rules of procedure regulating the proceedings of NDC) and which provides that the NDC shall ordinarily meet in public. He then observed "... and members may therefore attend as members of the public." He stated: "Given the democratic and participative nature of the Union, it would be difficult to argue that members have neither an express nor implied right to seek to attend public sessions of the NDC as visitors. "
11. The CO went on to find (and these findings were not challenged) that:

i. the initial decision was an "administrative decision ";

ii. the "administrative decision " and "policy decision " were taken "in good faith to deal with the problem of disruption that had arisen .. at the 2003 NDC" ;

iii. the Union has a "general discretion to exclude as visitors those whom it sees fit, including members" (so long as it was not exercised arbitrarily or perversely); and

iv the prime purpose of those decisions was not to further punish those who had already been subject to discipline.

12. He then reasoned as follows:

a. Ms Gallagher had an implied right to attend the NDC as a visitor.

b. Although the purpose of the Union's administrative decision was not disciplinary, its foreseeable consequence was to increase the penalty imposed on those already disciplined and so its "intention" was to disadvantage people like Ms Gallagher who had been subject to disciplinary action under its rules.

c. Ms Gallagher would not have been debarred from attending but for the previous disciplinary penalty.

d. Therefore the decision amounted to the imposition of a further disciplinary penalty, which infringed the rule making the original disciplinary penalty final.

Submissions

13. The Union submitted that on the basis of the decisions in Ryan and Dennison, until the present case, the scope of the relevant part of s. 108A was understood to be this:

a. Where a union purported to discipline a member, but did not observe its rules in terms of procedural safeguards and/or the range of permissible sanction;

b. Where a union in effect disciplined a member - by imposing a disciplinary sanction within its rules - but without purporting to invoke its rules concerning disciplinary action at all;

c. Where a union subjected a member to a significant detriment by depriving him/her of a significant entitlement as a member under its rules (albeit not a detriment prescribed as a disciplinary penalty within its rules) for a deliberately disciplinary purpose.

14. The Union's complaint of principle about the present CO's Decision was that it
    took a clearly unwarranted step beyond the parameters previously established to his
    material jurisdiction, in concluding that a union may be in breach of s. 108A where:

a. there was no actual or purported imposition of a disciplinary process;

b. the alleged detriment to the member complained about was not a disciplinary

sanction provided for by the union's rules; and

c. the alleged detriment was imposed in good faith for an administrative reason and not for

a disciplinary purpose.

15. The Union contended that the CO in this case confused the jurisdiction established
    by s. 108A of the Act with the jurisdiction established by ss.64-65 of the Act: all the
    Union's decision complained of by Ms Gallagher could be said to have done was to have
    subjected her to "some other detriment" within s.64(2)(f), but not for a reason making it
    unlawful by reference to s. 65. Whilst members do have the implied right (as does any interested member of the public) to attend public sessions of the Union (subject to the obvious caveats regarding space, health and safety, etc) the implied right is not a right of membership since it is available just as much to a non-member as to a member.
16. Ms Gallagher submitted that she was prevented from attending the conference because she had been disciplined and that preventing her from attending the conference was an additional penalty. The decision of the CO was therefore correct.

Conclusions

17. The CO correctly accepted that the Union's rules do not provide that its members have the right to attend the NDC as visitors. The NDC is a meeting of delegates, not a meeting of members. He referred to rule P.4.1 of the Union's Rules which is a part of the rules of procedure regulating the proceedings of NDC and which provides that the NDC shall ordinarily meet in public. He then observed "... and members may therefore attend as members of the public ". This rule could not properly be construed as conferring any right or benefit of membership on non-delegates. It is noticeable, for example, that the Rules do not provide for any power, disciplinary or otherwise, for the Union to debar anyone -whether a member or not - from attending the NDC as a visitor, or to regulate their conduct during the NDC. This contrasts with the position of delegates whose conduct is governed in some detail by rule P7. The CO correctly recognized this at paragraph 21 of his decision, where he stated "I have found that the Union has an express duty ordinarily to hold its Conference in public session and that members have an implied right to attend Conference as visitors, in their capacity as members of the public".
18. Following his findings that the Union's initial decision was an administrative decision, that both it and the subsequent "policy decision " were taken in good faith to deal with the disruption problems at the 2003 NDC and that the Union has a "general discretion to exclude as visitors those whom it sees fit, including members", the CO was correct to find that the "prime purpose of those decisions was not to further punish those who had already been subject to discipline". He was also entitled to find that effect of defining the constituency of those barred from attendance as members of the public was to further disadvantage those found to have committed disciplinary offences.
19. However in our view he was then in error in concluding that the "intention" of the Union was to impose a further penalty on Ms Gallagher and that its disciplinary nature was manifested by the fact that the exclusion from attending as a member of the public was of the same duration as the period during which she was debarred from office. The Union was not purporting to subject Ms Gallagher to a disciplinary process: indeed it appears that Ms Gallagher was not mentioned during the discussion prior to the Union's decision. The intention of the Union was to ensure that the NDC was properly conducted and free from disruption. Further, the "detriment" was not a disciplinary sanction within the Union's rules, and was not such as to deprive Ms Gallagher of any entitlement as a member under its rules (as opposed to her rights as a member of the public) and it was not imposed for a disciplinary purpose.
20. In our view the CO's reasoning fails, first, to distinguish purpose and foreseeable consequence, and second (apparently something to which the CO referred during the hearing before him, but not in his decision) to distinguish between the effective cause and a pre-requisite factor or condition, which is not necessarily the effective cause. Whilst it is true that Ms Gallagher would not have been affected by the Union's decision had she not been disciplined and the Union must have foreseen that such people as Ms Gallagher might be affected by its decision, that is not the same thing either as the Union imposing a penalty of a nature mentioned in its Rules (as the Union were held to have done in Ryan's case), or as the Union making its decision a disciplinary purpose (as in Dennison).
21. In our judgment it could not properly be said that the Union imposed a disciplinary penalty on Ms Gallagher either by the original administrative decision or by the subsequent resolution of the NEC. The CO should not have found that the Union acted in breach of its disciplinary rules and should not have determined that the Union was in breach of its rule I:9.2. We will therefore substitute for his a decision a decision dismissing Ms Gallagher's application.