Appeal No. UKEAT/0352/12/GE
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
30 September 2013
Before
HIS
HONOUR JUDGE McMULLEN QC
MR M CLANCY
MRS A GALLICO
NORTH
ESSEX PARTNERSHIP NHS FOUNDATION
TRUST APPELLANT
MR
E BONE RESPONDENT
Transcript of Proceedings
JUDGMENT
HIS HONOUR JUDGE McMULLEN QC
1.
On 12 December 2012 we stayed this appeal pending the application of the
Workers of England Union (WEU) to the Certification Officer for a certificate
of independence. Following an agreed further stay the Certification Officer,
Mr David Cockburn, has given his certificate to the union. It is an
independent union, the certificate is dated 27 June 2013.
2.
The issue which we foreshadowed in our first Judgment which should be
read in conjunction with this has now arisen, which is as to the retrospective
effect of the certificate. We recall that the approach of the Claimant at the
hearing was that if the application came to nought these proceedings would
likely be over and that is the consistent position of Mr Lakha today. He says
the certificate is conclusive for all purposes; so if against the union that is
an end of it and if in its favour it is entitled to prevail.
3.
The reference to the conclusive nature comes from the 1992 Act section
8(1) which provides as follows:
“8 Conclusive effect of Certification Officer´s
decision
(1) A
certificate of independence which is in force is conclusive evidence for all
purposes that a trade union is independent; and a refusal, withdrawal or cancellation of a
certificate of independence, entered on the record, is conclusive evidence for
all purposes that a trade union is not independent.”
4.
The timescale between our last hearing and today’s has enabled both counsel
to formulate clear written and oral arguments on the legal proposition and to
cite to us a number of authorities. At the outset, a witness statement was
produced by Mr Bone sent on 27 September 2013 by his solicitors by which he
seeks to show the process which he, on behalf of his union, went through with
the Certification Officer and his officers. We have decided this is not
relevant to our considerations. The document is not supported by an
application, nor does it meet the criteria set out in his order by HHJ Serota
QC for new evidence to be adduced, nor the provisions of the 2012 practice
statement.
5.
We have of course looked at the contents. Since there is no dispute as
to the correctness of the CO’s decision, the process by which he arrived at it
is irrelevant. We have been shown for the first time the guide for trade
unions wishing to apply for a certificate of independence issued by the
certification office in a revised document of November 2011 which explains
fully the statutory provisions and what happens when a trade union on the list
of trade unions, as this one is, seeks to improve its status by obtaining a
certificate of independence. This is what is the guidance says:
“12. A detailed investigation of each application is carried
out. The investigation, may involve a visit usually carried out by a team of
two, involving a visit to officials of the applicant union at its offices or at
their place of work for detailed discussions. Before the visit, documents such
as minutes of meetings of the union’s Executive Committee and of joint
negotiating meetings with management are requested from the applicant union and
examined. During the visit enquiries are made in relation to any points of
objections raised and further questions asked that have arisen as a result of
the initial scrutiny. Where necessary, the investigating team pursues
enquiries at branch as well as head office level and in the case of single
company or single employer unions they normally talk separately with a
representative of management in order to assess the employer’s attitude.”
6.
This follows the publication of the application in the London Gazette
and on the CO’s website and it is open to anyone to make representations and objections.
Relevant in these proceedings is the fact that no objection was made by the
Respondent to the union’s application. Thus there is no basis for us admitting
specific evidence about how the Certification Officer went about his decision
simply because some hypothetical examples are given in argument before us. The
Respondent has not had an opportunity to say anything about this. It may be
uncontroversial but formally it is not relevant to the legal decision we have
to make and we will not clutter up the decision making by the admission of this
material.
7.
The simple preliminary question in this case is: does the 2013 certificate
of the CO affect the rights of the Claimant in respect of his activities in the
WEU in 2010? The Tribunal, as we have said, was unaware of this issue but
frequently on at least six occasions makes the decision that the Respondent
deterred the Claimant from taking part in the activities of an independent
trade union; see for example paragraph 50, 51, 52 and 63 which follow the
Tribunal’s self-direction under section 146(1) set out in paragraph 15 of its
Judgment.
8.
The authorities placed before us relate to a previous regime, they are Blue
Circle Staff Association v Certification Officer [1977] 1 WLR 239, Association
of HSD Hatfield Employees v Certification Officer [1978] ICR and one we
drew to the attention of Counsel General & Municipal Workers Union v Certification
Officer [1997] ICR 183. Those cases were challenges to the Certification
Officer’s grant or refusal to grant relevant certificates and the essential
question is whether or not the union was under the domination or control of an
employer or vulnerable to its influence.
9.
These cases are understandable in their historical context where there
was in the initial stages of the decade following the Industrial Relations
Act 1971 a system of registration of trade unions to which most of the
unions in the TUC did not subscribe. There were strong feelings about the
attempts, as the unions saw it, by the legislature to control the activities of
the unions. There was a benefit to an employer in encouraging its own staff
association so that it would deter its employees from joining an independent
trade union which could properly assert the rights of the employees.
10.
All of that is long in the past but what is put before us today is what
is described as an organic approach for in Blue Circle the EAT, Cumming-Bruce
J presiding said the following:
“The Certification Officer decided that the staff association
was not thus independent. He gave his reasons in his decision letter and
elaborated them in evidence before us. He was troubled by one of the rules in
the new rule book, and by two of the provisions in the procedure agreement of
February 23, 1976. But, more important (as the rules could be amended, and one
of the clauses in the procedure agreement has already been amended), he doubted
whether a transformation as dramatic as that which the staff association
claimed had been demonstrated over as short a period as five months. After
all, the history revealed an organisation which from its formation in 1971 until
February 1976 had been little more than a sophisticated instrument of personnel
control. So he thought that the traces of dependence which appear in the new
rule book and procedure agreement are chiefly significant as illustrating the
fact that it takes time for any create to slough off its old skin and grow a
new one. In his view the association had taken steps towards independence but
had not gone far enough along the road. He thought that it should establish
some record for itself which he expected to take some time, though he would not
predict how long. He was impressed by the degree to which this organisation
had been dependent over the first five years of its life; and that history
imposed upon him a duty to look scrupulously at all the facts in order to see
if it was clear that over a few months the organisation had changed its
character from almost total dependence on the employers to independence as
defined in section 30(1). In response to a question from the tribunal the Certification
Officer described his approach. He stated that he had found no nice clear
yardstick which could be laid against each case, but that it was a case of
looking at the factors and doing a balancing act. He then indicated certain
criteria which he found useful. In view of the novelty and importance of the
subject matter we set out these criteria as the witness described them, though
we do not think it would give a fair impression of his evidence if we suggested
that he presented them either as comprehensive, or of similar weight in any two
cases.”
11.
What follows is a set of criteria used by the Certification Officer
including this passage:
“4. History: The recent history of a union, important in
the case of Blue Circle Staff Association which before February 1976 was
dominated by the employers, is considered. It was not unusual for a staff
association to start as a “creature of management and grow into something
independent.” The staff association had started on this road but still had a
way to travel.”
12.
And the question is set out as follows at page 246 (e):
“On these facts, and after learning the way in which the
Certification Officer approached the case in June, we had on November 9, to
decide if we ourselves were satisfied that the certificate should be issued.”
13.
The reason why that material was adduced was because in those days there
was an appeal to the EAT on a question of fact from the Certification Officer
and one can readily understand how the EAT went into that. Those criteria,
which the Certification Officer of the day indicated he considered, now find
their way into the guide. Under the heading of “History” which is the relevant
passage relied upon there is this:
“18. Sometimes evidence is found that the union began with
employer support and encouragement, or even as a creature of management. If
that evidence relates to the recent past it is a powerful argument against the
granting of a certificate. But experience indicates that over time some unions
can and do evolve from a dependent to an independent state; and the decision
must, of course, be based on the facts as they are at the time of the
investigation and not as they were several years ago.”
14.
We will return to this but it is worth noting that the focus here is on
matters found at the time of the investigation. The account given by the EAT in
Blue Circle indicates what was the impression of those
experienced in industrial relations at the time that there can be an evolution
from complete dependence to independence. This is what was noted in the HSD
case where this is said by Kilner-Brown J presiding in an appeal against the
refusal of the CO to acknowledge the independence of the staff association:
“B Initially, therefore, this large proportion of the work
force failed completely to satisfy the stringent tests required for
certification as an independent trade union.
D However, we are all three of us satisfied that later there
was a considerable change in the situation […] Nevertheless, we are satisfied
from the evidence we have heard that they are now fiercely independent of
management insofar as their existence as an organised body is concerned.
Circumstances have compelled them to acquire a status which they had not
previously reached. We are clear that it would be wrong to say that they are liable
to interference and in consequence we concluded that the appeal should be
allowed and direct that the Certification Officer issue the appropriate
certificate.”
15.
In addition to that the Judgment, in the GMWU case is that
those who object to the grant of a certificate may not be heard on an appeal
against it. Having heard the most persuasive arguments on behalf of the union,
the EAT was unable to accept the final submission that disappointed contending
independent trade union had a right to be heard: see page 186(d).
16.
Separating those cases and Akinosun [2013] UKEAT/0180
relied upon by the Respondent, is a lifetime. It was a straightforward appeal under
section 9(1) by the disappointed trade union against the refusal of the
certification officer to enter it on the list of trade unions. There is a
similar provision in relation to a union disappointed by a refusal to award a
certificate of independence: see section 9(2). The reference in both of those
is to an appealable question and this reflects a change in the law by the Employment
Relations Act 2004 section 51 to confine the questions appealable to
questions of law and not questions of fact. In construing the relevant
provisions the Langstaff P concentrated on the language. In paragraph 6 of his
Judgment the President accepted that the point of construction was framed in
the present tense. He said this:
“6 […] The “organisation is a trade union”, are words which
look not to what will be at some future date. They do not anticipate what it
is contended, whether reasonably or not, will be the situation next week or
next month, they to see [sic] whether as it now stands the organisation under
consideration meets the definition in section 1. This point of construction
seems to me clear from the tense but it is in any event supported by the
structure and purpose of the Act. Certification is a serious act. The reason
why the sections are as detailed as they are and provide for mandatory
certification if a body is a trade union and do not give any power to certify a
body which on the facts is not, is that important consequences follow from the
fact of certification. There is an academic debate as to whether a body which
is an organisation whose purposes include regulating relations between workers
and employers is a trade union irrespective of whether it is certified. The
better view may well be that it is, but that is a pointless debate in the
context of certification: and the benefits which are conferred by certification
are not conferred on any trade union, but only one whose name has been entered
into the list.”
17.
That is of assistance in the looking at the certificate which is given
to the trade union in this case. The Certification Officer says that the union
is independent. For the purposes of section 146 of the 1992 Act, the reference
is to a certificate in force. The parallel provisions relied on as an aid to
construction are the application for interim relief by a person who is claiming
unfair dismissal for their activities at an appropriate time in an independent
trade union (section 161). We noted in our earlier hearing that it is customary
for the certificate of independence, a copy of it anyway, to be sent with the
claim form but it is mandatory for an officer of the union to certify that the
actions complained of fall within the section. In the standard case, it must
say the Claimant was a member of the independent union “on the date of the
dismissal”. In other words, the employer has to know this union is independent.
If the Claimant must demonstrate he was a member of the independent union on
the date of dismissal for interim relief, it follows that the same test applies
for the purpose of the full hearing of the unfair dismissal claim, and
logically for section 146 detriments too.
18.
We turn then to the two issues before this Tribunal. The first is the
conclusive nature of the certificate. It is common ground that the union is
today independent. Mr Lakha says the words “for all purposes” are plain and
very wide but he accepts two derogations from that. The first is that where
the certification officer withdraws the certificate in the future obviously the
existing certificate is not for all purposes inclusive. It is until there is
another certificate. Secondly, he accepts that it is not conclusive as to the
past indefinitely. When a trade union has been refused a certificate, let us
say, in 2010, that is conclusive for all times on his submission backwards and
forwards but is trumped by a certificate, let us say, in 2013 which itself will
be conclusive for all purposes.
19.
So the proper construction of this is “for all purposes, except where
there was in place a certificate either of refusal or of independence”, thus
the words are not absolute. Do they mean, however, that a certificate issued
in 2013 can reach back in time to cover the torts said to have been committed
in 2010. The relevant date in our case in respect of the four detriments found
by the Tribunal to have been suffered by Mr Bone is 5 May 2010. The claim form
was presented on 20 January 2011 and so on any account the certificate of
independence is two or three years after these events.
20.
The strongest point relied on by Mr Lakha is the stay which we ordered
and we were obliged to order. As we indicated in our first judgment, what is
the point of staying it if the Certification Officer comes back with a
certificate that does not include any pre-dating? The Certification Officer is
under no obligation to provide reasons for his decision but doing the best we
can from the Guidance it is apparent that he pays attention to the history, to
representations made to him, but clearly makes his decision on the evidence
available to him on the date of the decision. That includes the fruit of the
investigation which he or his officers have undertaken; see the passage cited
from paragraph 18 above.
21.
This is also reflects the use of the present tense as cited by Langstaff
P in his Judgment for in paragraph 13 of the Guide there is this:
“13. The information collected in this way provides the factual
basis on which the decision is taken. If the Certification Officer considers
that the applicant union does not meet the requirements of the statutory
definition, its application is refused; if he considers that it does, a
certificate of independence is issued.”
22.
Finally, the Guidance says this:
“26. No single factor listed above can be decisive by itself.
It is necessary to look at the whole nature and circumstances of the union and
then make a judgment about whether or not it satisfies the statutory
definition. Because there is no convenient yardstick which can supply a
ready-made answer there must often be a subjective element in the decision,
especially where the arguments for and against independence are finely
balanced.
27. As a statutory authority, the Certification Officer has to
work within the limits set by Parliament. It is no part of his function either
to defend or to criticise the policy embodied in the legislation. His function
is a quasi-judicial one; it is his duty to examine all applications impartially
and objectively; if he refuses an application, he must give reasons for doing
so; and those reasons must be firmly based on the concept of independence as
defined in the legislation and be able to be tested on appeal.”
23.
It is common ground that the Parliamentary intent of the stay was to
keep the courts, Tribunals, ACAS and the EAT out of the fact sensitive decision
making on the independence of the trade union and to reserve that to the
officer appointed by statute for that purpose. We have considered most
carefully what the effect of this stay has been. It has been to leave Mr Bone
with the expectation that there might be a change in his position because what
is the point of sending this case off to the CO if all that can happen is the
CO can give a certificate of independence relating to the time of his
investigation and the time of the certificate? What Mr Bone wanted was that the
certificate should immunise his activities, give him protection, for what
occurred in 2010. We consider that is a good point. It will no doubt leave Mr
Bone disappointed that our answer to it remains somewhat inconclusive.
24.
The plain fact is that the Certification Officer has made an unarguable
decision on 27 June 2013 that the union is independent and that will remain in
force for all purposes until another decision to the contrary is made, but it
does not tell us what its status was in 2010. What Mr Lakha invites us to do
is to find that it was independent in 2010, the very task which we must eschew
by statute.
25.
There simply is no answer to point of the stay except to perhaps give
some consolation as to the future; Mr Bone is still employed and this may be
some utility to him but if he had been dismissed for his activities it would
hardly help him at all. There has been no direct evidence to describe the
position of this trade union in 2010 when the activities took place and the
requirement of the statute is that it must be an independent trade union.
There is some practical justification for that as we pointed out in debate from
the experience of the lay-members here. It would be very difficult for an
employer to be subject to claims of the present nature where it did not know
that the union was independent. We gave as an example the defence in a disability
discrimination claim under the Equality Act that an employer did not
know that the employee was disabled and so did not know what adjustments
reasonably to make for the disability.
26.
So there is a practical reason why there should be a prior determination
of independence before the assertion of the statutory right and the statutory
protection. For example a union might take five years to emerge from the cloak
of the employer. Would that change the nature of the actions taken in those
days?
27.
That is a difficult question to answer given the different statutory
purpose of the provisions. Where in the early authorities unions were
considered not to be independent, it affected their rights to collectively
bargain. But Mr Bone is relying on a different provision protecting those who
take part in the activities of the union against the unlawful discrimination of
their employer. That protection has no context when the union is under the
domination of that very employer who is not likely to challenge the activities
of representatives of an organisation of its own creation. Yet the definition
of independence serves both purposes.
28.
The second practical matter is that there never has been any challenge
to the independence of this union. No-one could doubt reading the Judgment,
subject as it is to appeal, of the considerable acrimony by the employer to Mr
Bone and his trade union actions. This is not likely to be under the
domination or control or vulnerable to that of North East Essex Partnership NHS
Foundation Trust, whereas that was the real fear of the staff associations and
genuinely independent unions in the 1970s.
29.
We acknowledge that the Tribunal has made on those several occasions a
finding that he was engaged in the activities of an independent trade union.
We note that the stay that must be imposed by a Tribunal arises only where
independence is in issue and it was the EAT which put the independence in issue
at the time of the first appeal because it seemed to be a statutory requirement
to be independent. But the same would have happened at the Employment Tribunal
had the point been taken by the Respondent and it would have been bound to stay
the proceedings as we have been.
30.
The proceedings were brought and relate to a time when the union did not
have a certificate and we consider that is inimical to the construction urged
upon us by Mr Lakha with great clarity. It is counter-intuitive to allow the
kind of backdating for which he contends. A certificate given in June 2013 is
unlikely to provide protection to actions taken in May 2010. One has to have
very firm pointers in a statute for that to be the effect. There is nothing in
this statute that does that. Applying common sense, particularly invested as
this Judgment is with the experience of the lay members, it cannot have been
the intention of Parliament to give after-the-event protection to a trade
unionist. The sequence is plain; get on the list of trade unions, then apply
for independence; not difficult although perhaps time consuming but as we have
seen in this case six months is what it took, during which time it seems to us
there is not the protection afforded by section 146(1) to the membership or
activities so described.
31.
For those reasons we uphold the submissions of Ms Azib, preferring them
to those of Mr Lakha. We canvassed with both counsel what should happen at the
outset of today’s proceedings and given the way we have decided, it is
unnecessary for us to make a determination on the substance of the case and we
decline to do so. The Employment Tribunal should not have got itself into the
position of a 10-day hearing and a 38-page Judgment without first considering a
stay and the arguments associated with it, but that is no reason for us to go
into the merits. Having decided the procedural jurisdiction point we say
nothing about them.
32.
The appeal is allowed. Permission to appeal.
