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09/02/2009

Unison v. Bakhsh

Uncategorized

Employment Appeal Tribunal

The tribunal heard two appeals by the appellant union against separate and unrelated decisions of certification officers concerning the status of the respondent union officers (B and S) while suspended pending disciplinary investigation.

The cases concerned what was meant by invocation of an internal complaints procedure under the Trade Union and Labour Relations (Consolidation) Act 1992 s.108B(6) and the interpretation and application of "Rule C: Membership" and "Rule I: Disciplinary Action" in the union's 2007 Rules. B, joint secretary of his union branch and a member of the Health Services Group National Executive, had been suspended from office in January 2007 under r.C7.4.1. Matters of financial irregularity arose and in March 2007 the suspension was extended under r.C7.4.2, which permitted suspension to continue until the conclusion of the disciplinary investigations. No charges were made against B. In November 2007, he successfully applied to the certification officer for a declaration that his suspensions were of no effect because he had not, at the relevant times, been "facing disciplinary charges" within the meaning of rule C7. The certification officer also ruled that B's letters and emails to the union upon being suspended in January constituted the invocation of an internal complaints procedure within the meaning of s.108B(7)(b) of the Act and that he was therefore not out of time in making his application for a declaration. In S's case, suspension in December 2006 under r.C7.4.1 had been extended at the end of January 2007 under r.C7.4.2. In mid-February, S put himself forward for election to the union's National Executive Council and was told that he was ineligible to stand while he was suspended from office. S complained that his exclusion from candidature was a breach of s.47 of the Act. The certification officer upheld the complaint on the basis that the reference to "holding office" in r.C7.4.2 did not intend to exclude a person from standing as a candidate and that the automatic exclusion of a person subject to precautionary suspension was prima facie unreasonable in the absence of an express rule permitting such exclusion.

HELD: (1) B's application for a declaration had been out of time. The reference in s.108B(6)(b) to invocation of an internal complaints procedure could be given a fairly wide meaning so as to cover, for example, an appeal procedure. However, in order to be considered as the invocation of a complaints procedure, it was essential that some recognisable formal procedure was being followed, such that there were specific dates at which it could be said the procedure had been invoked and at which it concluded. In the instant case, as the Rules did not provide for any appeal against a decision to suspend, and as B's correspondence had effectively asked for a reconsideration, there was nothing that could fairly be regarded as the invocation of a complaints procedure. It was immaterial that there had not been a specific complaints procedure available for B to follow. (2) B's suspension had not been in breach of the union's rules. The phrase "faces disciplinary charges" in r.C7.4 could be read as meaning "faces the prospect of disciplinary charges" as one could "face" a future event as well as a current fact. Such an interpretation would not distort the natural meaning of "charge" and would conform to the likely intention of the rule-makers. The initiation of an investigation into an allegation of misconduct was itself a formal step and, in any event, it was very usual to be able to exercise a power to suspend from the start of a disciplinary process irrespective of the point at which formal charges were formulated. (3) The certification officer had been correct to construe r.C7.4 as not permitting the prohibition of members facing disciplinary charges from standing for office. Holding office and standing for office were not the same thing. Also, it was essential to appreciate that the nature of suspension under rule C7.4 was precautionary; a member should not be prevented from exercising his democratic right to stand for office in circumstances where he might be entirely free to take up office if elected. The situation of a precautionary suspension under r.C7 was not analogous with r.I8(4) where the member would have been definitively barred from the benefits of membership. Instead, good reason for the exclusion had to be shown, and in the instant case it had not been shown. (4) Appeal relating to B allowed; appeal relating to S dismissed.

Appeal allowed in part.

[2009] IRLR 418

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