United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B HENRY (In-house Counsel) Messrs Lees Lloyd Whitley Solicitors 17-21 Price Street Birkenhead CH41 6JN
For the Respondent	MR A DARKEN (The Respondent in Person)


 


SUMMARY

Certification Officer

The Certification Officer correctly construed TULRCA s48(6). The preparation of an election address within a time limit is both a facility and a restriction which must be afforded equally to all candidates. A candidate is a person who is nominated at the date nominations close. The failure of the Union to give the candidate the same 28 day period to prepare his address, conceded on appeal to be a disadvantage, was correctly found to be a breach.


 


HIS HONOUR JUDGE McMULLEN QC

Introduction

1. This case is about equal treatment of candidates in an internal union election. The judgment represents the views of all three members. We will refer to the parties as "the Union" and "Mr Darken". It is an appeal by the Union in proceedings against a decision of Mr David Cockburn, the Certification Officer, given with reasons on 28 April 2006. Mr Darken represents himself, and the Union is represented by Mr Bruce Henry of Counsel.
2. Mr Darken claimed that the Union had breached the statutory rules for equal treatment of candidates in the 2006 election for Vice-Chair, in which he was a candidate. The Union contended before the Certification Officer that it had complied with the statute. The essential issue was one of construction of s48(6) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) which provides as follows:

"s.48 Election address

(6) The trade union shall, so far as reasonably practicable, secure that the same facilities and restrictions with respect to the preparation, submissions, length or modification of an election address, and with respect to the incorporation of photographs or other matter not in words, are provided or applied equally to each of the candidates."

3. The Certification Officer upheld Mr Darken's complaint and so the Union appealed. An appeal lies to the EAT on questions of law, arising from his decision, pursuant to s56A of the 1992 Act and s21(4) of the Employment Tribunals Act 1996. In fact there are comparatively few appeals which reach us particularly after the restriction introduced in 2004 on questions of law.
4. Directions sending this appeal to a preliminary hearing were given in chambers by HHJ Burke QC and at that preliminary hearing by HHJ Richardson and members, it was sent to a full hearing. That panel dismissed one ground of appeal, perversity, but left the construction point to us.

The facts

5. The Prisons Officers' Association (POA) is an independent trade union, recognised for the purpose of collective bargaining for prison officers throughout the United Kingdom. The Certification Officer is a regulator, given powers by statute to hear complaints from members of trades unions about, for example, the conduct of ballots. He can make decisions and can enforce them by orders.
6. On 19 October 2005, the National Executive Committee (NEC) of the Union met and decided to conduct a ballot for the office of Vice-Chair. The matter had not been placed on the agenda beforehand. A timetable was drawn up which included a closing date for the submission of election addresses by candidates, which was 16 November 2005. Mr Darken has a seat on the NEC but, because of other business he was attending to, he was not present during the passage of time at this meeting when the matter was discussed, and he did not find out about the closing date until 15 November 2005.
7. In due course, the members were notified of the closing date for nominations, which was 11 November 2005, and Mr Darken, as a member, and as a member of the NEC, knew that. He submitted a nomination, which was duly accepted. There were three candidates. In addition to Mr Darken were Mr Cox and Mr Adams. The last two are also members of the NEC but unlike Mr Darken they had been present when the ballot was discussed on 19 October 2005, and knew the date for the submission of election addresses. The first Mr Darken knew about this was when he received a circular sent to members on 14 November 2005, which he received on 15 November 2005. The circular publicised the closing date as 16 November at 5.00 pm. It is conceded before us that Mr Darken was at a disadvantage in having only one day to prepare his election address when Mr Cox and Mr Adams had known of the date since 19 October, giving them 28 days.
8. Mr Darken complained to the general secretary by letter on 15 November 2005 and asked him to extend the deadline for the submission of election addresses. The general secretary did not do so. All three candidates did submit election addresses; indeed, Mr Cox submitted his on 11 November, that is, before the general notification to members of this. The result of the election was declared on 4 January 2006. Mr Cox received 2,735 votes, Mr Adams 2,003 and Mr Darken 1,449; so Mr Cox was elected.

The Union's case

9. The Union submitted that the Certification Officer had misconstrued the statute in two respects: first, in the determination of when a person becomes a candidate, and secondly in respect of the definition of a facility or a restriction. Mr Henry accepted that the timing was, as he put it, unfortunate on these facts and that the tight deadline created a disadvantage to Mr Darken because he did not know, whereas others did earlier.

Mr Darken's case

10. Mr Darken's case is simplicity itself. He sensibly complained to the general secretary of the tightness of the deadline and had it been extended, he told us, he would not be here. He also told us that he would not have complained if those in the know at the NEC had had, say, eight weeks' advance notice of the date and all others had four weeks in total. That, if we may say so, is a very sensible approach to take to this problem.

Discussion and conclusions

11. There is no definition of a candidate in the statute. It is common ground before us that a person becomes a candidate at the close of nominations. A candidate may submit a nomination, duly nominated and seconded, within the deadline but subsequently withdraw it, or possibly be disqualified for some technical reason such as for being in arrears by the rules. Once the deadline for nominations is closed, it is possible to regard the people as candidates, and we so hold.
12. Then there must be equal treatment of all candidates in the facilities offered to, and restrictions placed upon, them. It is common ground before us that the preparation of an election address is a facility. It is also common ground that placing a deadline on the submission of such an election address is a restriction; so, for example, would be a limit on the number of words to be used. Thus, in this case, the requirement that election addresses be submitted by 5.00 pm on 16 November was a combination of a facility and a restriction within the meaning of s48(6).
13. All members of the NEC present when the matter was debated on 19 October 2005 had about four weeks' notice ahead of the general membership, including, for this purpose, Mr Darken. Given Mr Darken's acceptance that if a reasonable period had been given to all the membership he would not have complained that a slightly longer period was given to those who in fact attended the NEC. The issue relates to the tightness of the deadline in this case. The problem, in our view, was of the Union's own making for imposing such a tight deadline and for being so inflexible when faced with an entirely correct application for an extension of time beyond the one day vouchsafed to the candidates.
14. It has to be said on behalf of the Union that it genuinely believed that all three candidates had the same knowledge, for it was not known that Mr Darken was not present during the passage in the NEC's proceedings when the matter was debated. There is nothing sinister about the way in which Mr Darken was treated but he was treated unfairly.
15. Putting this in chronological terms, and bringing it down to the three candidates, two of them had 28 days to prepare the address and Mr Darken had only one. This placed him at a disadvantage and it was, we hold, unfair. The Certification Officer upheld the complaint that there was a breach. We agree. The facility of an election address was afforded to all the candidates and they were all given the same deadline, but the breach occurred because of the prior knowledge of those attending the NEC.
16. The Certification Officer recognised, in his observation at the end of his decision, that there may be a practical difficulty. A decision as to the holding of an election has to be made by someone in authority in the Union and it is usually made by those close to the administration, such as an executive body or the relevant officers. Thus, in every case, some will know in advance because they themselves have determined upon an election being held and will have set up a timetable. It may be, in some unions, that there is a standard format for the holding of elections with a timetable, so that once a decision is made that there is to be an election any member can work out when the relevant stages in the election will take place. Nevertheless, some organ of the Union, consisting of its leading members, has to decide when the timetable will begin and that will necessarily put those decision-makers attending the relevant meeting in a superior state of knowledge as to the timetable.
17. The Certification Officer recognised this practical challenge can be solved by application of the terms of the statute which includes the words "so far as reasonably practicable". Mr Cockburn, with his extensive experience as a holder of this unique office, considers that this is a practical solution to what might technically be regarded as a breach. Very sensibly, if we may say so, he points to the solution that there would not be a breach provided that fairly quickly after a decision has been made to call an election that information is distributed to the membership, because there would, so far as reasonably practicable, be compliance with the equal provision of facilities and imposition of restrictions.
18. Similarly, Mr Cockburn recognised the problem in this case was caused by what he described as the extraordinarily tight deadline imposed, which makes it an extreme case. The simple solution would have been to allow a longer period for the preparation of addresses so that the extreme difference between the state of knowledge of candidates became attenuated; as we have put it, the difference was between 28 days and one day but if, just to take Mr Darken's ready acceptance, the period had been extended by four weeks to all, he would have taken no point about that.
19. In this field of internal trade union affairs and compliance with the statutes, we think that that is a sensible outcome. Mr Darken did not seek before the Certification Officer an order of enforcement and so there is nothing more for us to do.
20. We would very much like to thank Mr Henry and the Mr Darken for their co-operative approach to today's proceedings. The appeal is dismissed.