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Unison v. Kelly (EAT)


Court of Appeal

The restrictions on trade union discipline imposed by the Trade Union and Labour Relations (Consolidation) Act 1992 s.65(2)(c) were not an unlawful contravention of the European Convention on Human Rights 1950 art.11.

The appellant trade union (U) appealed against an employment tribunal's decision that the respondent members (K) had been unjustifiably disciplined contrary to the Trade Union and Labour Relations (Consolidation) Act 1992 s.64.

K were also branch officials and had submitted motions to be voted on at U's National Delegate Conference. The motions were refused by the Standing Orders Committee (SOC). K circulated a leaflet at the conference which included a cartoon depiction of the SOC as three wise monkeys. A disciplinary panel accepted that there was no racist intent but found that K were in breach of U's rules which provided that all members are to be treated with dignity and respect. The panel also found that the leaflet alleged that the SOC made decisions on political grounds, depending on whether they were controversial, which would be a breach of U's rules. K were banned from holding office for between three and five years. A separate claim by K alleging that U's decision to bring disciplinary proceedings amounted to direct discrimination and/or harassment under the Employment Equality (Religion or Belief) Regulations 2003 reg.3 and reg.5(1) had been dismissed. The issues in the instant appeal were whether the tribunal had erred in failing to (i) find that the restrictions on trade union discipline imposed by s.64 and s.65 contravened the European Convention on Human Rights 1950 art.11; (ii) hold that an issue estoppel had been created by the previous claim; (iii) apply the correct test under s.65(5); (iv) correctly apply s.65(6).

HELD: (1) There was an important public interest in s.65(2)(c); rather than threatening the right of trade unions generally to administer their own affairs, it protected against the maladministration of union affairs contrary to the union's own rules or the law. The tribunal was entitled to find that art.11 had not been violated. It was also entitled to find that even if s.65(2)(c) infringed art.11(1), it would have been justified under art.11(2). The tribunal was correct to find that it was necessary in a democratic society to protect the rights of union members to hold their union to account for breaching its own rules, where the members had acted in good faith. The right to freedom of expression entitled a member to reasonably express his opinions on internal union matters generally, and the right to freedom of association had to entitle members to influence the policies and actions of their union, Associated Society of Locomotive Engineers & Firemen (ASLEF) v United Kingdom (11002/05) [2007] I.R.L.R. 361 and Demir v Turkey (34503/97) [2009] I.R.L.R. 766 considered. The disciplinary measures imposed on K, preventing them from holding any office in their union, plainly had a serious effect on those freedoms and that of their members who voted for them (see paras 34-39, 43-45 of judgment). (2) The critical point was that the two decisions were dealing with different conduct by U. The first tribunal was concerned with the decision whether to have an investigation or not; the second tribunal was concerned with the outcome of the investigation. The issues before the tribunals were also different and the first tribunal's conclusion that K's specific political views did not constitute a religion or belief for the purposes of the 2003 Regulations was plainly not relevant to the second decision. Issue estoppel had no application in the instant appeal, Smith v Chelsea Football Club Plc [2010] EWHC 1168 (QB) considered (paras 56-61). (3) The words "would be disciplined" in s.65(5) meant would have been disciplined as the relevant individual was in fact disciplined. Under s.65(1), an individual was unjustifiably disciplined if "one of the reasons" for disciplining him was attributable to the actual or supposed conduct to which s.65 applied. Under s.65(5), if a member said or did something for which members would normally be disciplined, independently of the fact that the conduct was connected with a protected act, then it would not be justifiable to discipline that member for that conduct. Accordingly, K could not be disciplined for the allegations they made against the SOC but could be justifiably disciplined for causing racial offence by the cartoon. However, the tribunal had been entitled to conclude that the discipline imposed was as a result of what K said about the SOC and that they would not have been banned from holding office for such lengthy periods for the unintentional racial offence (paras 62-67). (4) The tribunal had not erred in its application of s.65(6). Section 65(6) prevented an individual from relying on the statutory protection where the assertion he had made was false and had been made in the belief that it was false or otherwise in bad faith. The tribunal, having found that K genuinely believed the assertion to be true and made in good faith, was entitled to consider that it was not necessary to decide whether the assertion was in fact true or false (paras 71-73).

Appeal dismissed

Counsel for the appellant: Antony White QC, Deshpal Panesar.

[2012] IRLR 442

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