Appeal No. UKEAT/0277/07/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal
On 27 September 2007
Judgment handed down on 15 October 2007

Before
THE HONOURABLE LADY SMITH
MR D EVANS CBE 
MR P GAMMON MBE

MR A IRVING	APPELLANT

THE GMB UNION	RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant	MS SUSAN MACHIN
(of Counsel)
(Appearing under the Bar Pro Bono Unit)	
For the Respondents	MR JASON GALBRAITH-MARTEN
(of Counsel)
Instructed by:
Messrs Thompsons Solicitors
Congress House
Great Russell Street
London
WC1B 3LW

SUMMARY

Certification Officer

Appeal under section 108A of the Trade Union and Labour Relations (Consolidation) Act 1992 against refusal of Certification Officer to declare the Respondents to have been in breach of their rules in four respects.  Certification Officer had held that he had no jurisdiction to make the first two declarations sought as the Appellant’s complaint was not in respect of the application of a rule relating to disciplinary proceedings, that the Respondents had complied with their own rules in respect of the third matter, that the rules were not engaged in respect of the fourth matter but even if they were, there was no breach.  Upheld on appeal. 

THE HONOURABLE LADY SMITH

Introduction 
1.	This appeal to the Employment Appeal Tribunal arises under the jurisdiction conferred by section 108C of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRA”) to consider appeals against the refusal by the Certification Officer (“CO”) to pronounce one of the declarations provided for by section 108A and B of TULRA.  The CO’s decision was dated 16 March 2007. 

2.	Both parties were represented by counsel before the CO.  He heard oral evidence and documentary evidence was also placed before him before submissions were made.

Background Facts 
3.	The CO made clear findings of fact.  The Appellant is branch secretary of the Respondents’ CIBA Chemical C41 branch in Bradford and in April 2005, he was elected Regional President for a four year term.

4.	Mr Nelson was, at all relevant times, the Regional Secretary of the Respondents’ Yorkshire and North Derbyshire region. 

5.	On 14 December 2005, the Appellant and four other members of the Regional Executive Committee (“REC”), including Ms Metcalfe met for a Christmas lunch, together with Mr Nelson, his PA and two persons from the Respondents’ solicitors.  In the course of the lunch, the Appellant made inappropriate and upsetting remarks to Ms Metcalfe regarding the Respondents’ handling of equal pay claims.  Ms Metcalf was very upset afterwards, was considering resigning and at the next meeting of the REC, under the “any other business” item on the agenda, she raised the matter. 

6.	Mr Nelson then asked the Appellant, his PA and Ms Metcalfe to leave the meeting.  The remaining committee members discussed the matter and decided to suspend the Appellant from his position as Regional President.  An investigation into the Appellant’s alleged conduct was instructed. 

7.	Mr Nelson confirmed the Appellant’s suspension and the instruction of an investigation in a letter dated 12 January 2006 and on 17 January he informed him of the specific allegation, namely that he verbally abused Ms Metcalf in an aggressive and intimidating manner.  The words of the complaint were his, not Ms Metcalf’s.  She had not lodged any written complaint. 

8.	After the investigation was completed, the matter was passed to a Special Regional Committee, convened for the specific purpose of dealing with this matter which could not properly be considered by the REC given the presence of their members at the Christmas lunch.  The Regional Secretary of the Southern Region, Mr Ascough, was asked to convene and administer the SRC.

9.	In letters of 20 February and 3 March 2006, the Appellant wrote to Mr Nelson.  His letters included comments which Mr Nelson took to be an attack on him as Regional secretary. 

10.	Mr Ascough wrote to the Appellant in an email exchange from 7 March 2006 in which he stated that the SRC would be meeting in accordance with rule 6 of the Respondents’ rules.  He referred to the matter as being a “grievance”.  A hearing was fixed and arranged for 17 March 2006 and later adjourned to 5 June and subsequently to 28 June.
11.	In the event, no hearing went ahead on 28 June;  the Appellant and Ms Metcalf had, when they attended on 5 June, discussed their differences and reached an amicable resolution.  They prepared a joint statement in which the SRC were asked to restore the Appellant to his position as Regional President.  Mr Ascough asked Ms Metcalf to withdraw her complaint but she pointed out that she had never lodged any complaint, as was the case. 

12.	Efforts were made to arrange a special meeting of the REC on 30 June to lift the Appellant’s suspension but the meeting did not take place until 12 July.  It was preceded by a private session at which the Appellant was reinstated and the Appellant presided over the meeting.  The first item of business was, however, the matter of disciplinary charges against the Appellant;  Mr Nelson  lodged five disciplinary charges against the Appellant.  The subject matter of the charges arose from the correspondence between him and Mr Nelson following the Appellant’s suspension. 

13.	On 16 July 2006, the Appellant lodged the present complaint with the CO. 

The Complaint 
14.	Insofar as relevant to the appeal, the complaint was in the following terms:
“Complaint 1
On or around 15 March 2006 by confirming to Mr Irving that a complaint had been brought against him under rule 6 without a complaint having been made against him to the Branch Secretary, the Union acted in breach of rule 6.1 of the rules of the union.

Complaint 2
On or around 15 March 2006 in breach of rule 6.2 of the rules of the union, the union failed to hold a hearing before the Branch or the Regional Committee of the alleged rule 6 complaint brought against Mr Irving.

…

Complaint 4
On or around 12 July 2006, by bringing a formal complaint as an individual member of the union under rules 5.5 and 5.6 against Mr Irving, the Regional Secretary Mr Nelson acted in breach of rule 5.5 of the rules of the union.” 

The Respondents’ Rules 
15.	The rules of the Respondents that are relevant to this appeal are:

“Rule 5 Membership 

…

5.5	The Central Executive Council, a Regional Council or a Regional Committee shall have the power to suspend from benefit or prohibit from holding any Branch Office, any member who in their judgment is guilty of attempting to injure the Union or acting contrary to the rules or who makes or in any way associates himself or herself with any defamatory, scurrilous or abusive attacks whether in any journal, magazine or pamphlet or by word of mouth, on any Official of the Union or Committee of the Union, or who acts singly or in conjunction with any other member or persons in opposition to the policy of the Union as declared by its Committee or Officials under these rules, or who gives encouragement to, or participates in, the activities of any organisation, faction or grouping whose policies or aims have expressed or implied promotion of racial supremacy or racial hatred at their core , or for any other reason they deem good and sufficient.

5.6	….

5.7	 The Central Executive Council , a Regional Council or a Regional Committee shall have power to debar any member from holding any office or representative position in the Union for such period as the Council or Committee concerned shall specify or from participating in the conduct of the business of the Union where in their opinion such member is acting contrary to the policy of the Union or against the best interests of the Union or for any other reason which they deem good and sufficient.

5.8	…

5.9	…

5.10	…

Rule 6 Appeals Procedure for Members

6.1	Should any member have any complaint to make he /she must do so to his/her Branch Secretary, who must submit the matter to the Branch.  If any member is not satisfied with the decision of the Branch or the Branch decides it is beyond its remit to offer a remedy, he /she may appeal in writing within one month of the Branch meeting to the Regional Committee the decision of which shall be final.

6.2  	At each hearing before the Branch or the Regional Committee (as the case may be), the member shall have a reasonable opportunity to present his/ her case. He/she may put his/ her case orally or in writing and shall have the right to support his/ her case by written statements, or to produce witnesses.  He/she shall have the right to hear contrary evidence, to answer it and to question witnesses.”

16.	It is, accordingly, evident that Rule 6 makes provision for the steps that a member of the GMB requires to take if he has a grievance which he wishes the union to consider.  6.1 tells him to whom he must submit the complaint and what he can do if he is not satisfied with the Branch’s response to the complaint or if the Branch decides the matter is beyond its remit.  6.2 provides that the member with the grievance has a right to attend at any Branch or Regional Committee hearing at which his complaint is considered.  He has the right to put his case before them orally or in writing, to present evidence either in writing or orally, to hear any evidence that is contradictory of his case and to cross examine any witnesses who give such evidence. Rule 6 does not confer any right on a member against whom a grievance is directed to attend that hearing or be represented at it. 

17.	Rule 6 makes no provision for sanctions and would appear to envisage the procedure being used so as to allow for consideration and implementation of whatever appropriate steps to respond to grievances other than disciplinary sanctions. 

18.	Rule 5, on the other hand, empowers the bodies referred to in it to impose certain sanctions on members in the event of certain “offences”, which are specified, being committed by them.   5.5 provides for the sanctions of suspension from benefit or prohibition from holding office in a GMB Branch if the member attempts to injure the GMB or acts contrary to its rules or is involved in any way in making defamatory, scurrilous or abusive attacks  on any GMB official or a GMB committee, or acts in opposition to declared union policy or encourages or  participates in the activities of  any organisation which promotes racial supremacy or racial hatred or if one of the  bodies referred to considers that there is good and sufficient reason for doing so.  Rule 5.7 empowers the same bodies to debar a member from holding any office or representative position in the Union for a stated period if the member is acting contrary to union policy or against the union’s best interests or for any other reason they consider good and sufficient.  

19.	The issue of whether or not the Appellant’s suspension on 11 January 2006 amounted to a rule 5.5 sanction was touched on in the course of the argument before us.  It was said by Ms Machin to have been a sanction because it had the effect of denying the Appellant “the benefits” of the post;  it was a rule 5.5 suspension of benefit.  She could not, however, point to anything that did not, in our view, amount to matters which, when properly analysed, showed that the Appellant had been relieved of responsibility during his period of suspension rather than “suspended from benefit”.  She could not point, for instance, to anything that he was deprived of in terms of money or moneys worth.  In the end of the day, nothing turns on this, but we mention it because the view that the Appellant’s suspension was a deprivation of benefit that showed that he had suffered disciplinary action from the outset, was inherent in the Appellant’s argument. 

The Relevant Law 
20.	Section 108A TULRA provides:
“(1) 	A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to one of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect …

(2)	the matters are –

	(a)	…
	(b) 	disciplinary proceedings by the union ( including expulsion)
	(c)	…
	(d)	…
	(e) 	…”

21.	Section 108B empowers the CO, on an application under section 108A to make any of the declarations or orders there specified. 

22.	Section 108C confers jurisdiction on this Tribunal to hear an appeal on a question of law.

The CO’s Decision 
1st and 2nd complaints
23.	The CO held that he had no jurisdiction because the subject matter, the Appellant’s conduct towards Ms Metcalf, was a rule 6 matter (grievance procedure) not a disciplinary matter.  That meant it did not come within the jurisdiction specified in section 108A.

4th complaint 
24.	The CO held that rule 5 was not engaged at all, since it made no provision as to the status of the Regional Secretary when laying charges and even if it did, it was complied with. 

The Appeal 
Rule 6 complaints 
25.	On behalf of the Appellant, it was submitted that he was deprived of benefit when he was suspended and that amounted to disciplinary action.  Where an individual is named as the subject of a rule 6 complaint then the rule is intrinsically linked to disciplinary proceedings.  A rule 6 complaint could, under the Respondents’ guidance provisions be put on hold pending investigation and possible sanction.  Reference was made to the provisions in the guidance document that indicate that that should be done.  There was an automatic connection with disciplinary proceedings.  Rule 6 took on the mantle of disciplinary proceedings if disciplinary proceedings followed.  This case was stronger than that in that, in the Appellant’s submission, disciplinary proceedings had in fact started when he was suspended.  The Respondents had plainly intended disciplinary proceedings all along.  What happened was in fact a disciplinary proceeding masquerading as a grievance.  That could be seen from the e-mails that showed that the Appellant was invited to the rule 6 hearing.  He felt vulnerable and if one looked behind the e-mails it was clear that there was a disciplinary process going on. 

26.	Ms Machin, perhaps not surprisingly, did not take issue with what was decided by the CO in another case in which he required to consider rule 6 of the Respondents’ rules, the case of   Fenton v GMB Decision D/16-20/04 but she argued it could be distinguished on its facts.

27.	In response, Mr Galbraith–Marten submitted that the Appellant’s case appeared to be either that the Respondents should have followed what was contained in their guidance document or that the Appellant was subjected to disciplinary proceedings and so the CO had jurisdiction, but both points had been decided by the CO, on the facts as found by him and it had not been shown that he erred in law. 

28.	Mr Galbraith–Marten submitted that the jurisdiction of the CO was limited to breaches of the relevant rules.  It was of no assistance to the Appellant’s case to say that they had not followed their guidance document.  Even if it was relevant to suggest that if the grievance rule were used as “sham”, the finding in fact by the CO was that was not what happened.  

29.	He referred to and relied on the case of Fenton.  It too had been correctly decided.  The CO had, in neither case, erred in law.

Rule 5 – 4th complaint 
30.	The Appellant’s objection was that Mr Nelson was, he said, not acting for the Respondents when he lodged the charges.  He was acting for himself.  Mr Nelson was not entitled to do so just because he was the Regional Secretary, thus eliding the need to start by making a rule 6 complaint, as any other member would have had to do to accord with the Respondents’ guidance provisions.  The question was whether what Mr Nelson did was an abuse of his power.  The CO should have gone behind a literal reading of the guidance and not have been satisfied that the Regional Secretary was entitled to act as he did in these circumstances. The REC should not have allowed the charges to go ahead.  Ms Machin recognised that her argument was predicated not only on the restriction to the effect that only the Regional Secretary could bring charges being found in the guidance document but also on it being appropriate in this case, to look behind the guidance to deprive the Regional Secretary of the power provided for in it. 

31.	For the Respondents, Mr Galbraith–Marten submitted that the Appellant’s argument failed to recognise that the CO’s decision was that rule 5 was not engaged at all because it made no provision as to who could trigger disciplinary proceedings.  Further, even it was relevant to consider whether or not Mr Nelson had brought the proceedings in his capacity as Regional Secretary or in a personal capacity, the CO had decided, on the facts, that he was acting as Regional Secretary at the time. 

Discussion and Decision 
32.	The Appellant seeks to challenge the CO’s decisions in respect of two complaints that he brought that the Respondents had breached rule 6  and one that they had breached rule 5. 

33.	The Respondents challenged the complaints of breaches of rule 6 on the basis that the CO had no jurisdiction to entertain them given the limits of his power under section 108A of TULRA.  The CO agreed that he had no jurisdiction.  They challenged the 4th complaint (rule 5) on the basis that there had been no breach of the rule.  The CO agreed that the rule was not engaged and even if it was, there had been no breach.

Rule 6 complaints 
34.	The question that the CO required to address was whether the first two complaints were complaints that the Respondents had breached “a rule … relating to … disciplinary proceedings by the union” (section 108A(1) and (2)(b) of TULRA).   If they were not then however well founded insofar as breach of a rule was concerned, he had no jurisdiction to deal with them. Parliament has provided that union members may have resort to the CO where a union breaches its own rules but only in restricted circumstances. 

35.	Application to the CO is not a remedy that is available in respect of every breach of every rule.  It is not difficult to understand why rules relating to disciplinary proceedings have been included in the jurisdictional list in section 108A(2).  Where a member is liable to suffer or has suffered the imposition of sanctions, the interests of justice can readily be seen as justifying his being afforded the right to take his complaint of  breach of the rules  before the CO in the hope of resolution or remedy.  Equally, it is not difficult to understand why rules relating to grievance procedures have not been included.  Grievance procedures do not involve the power to sanction the member who complains.  Even less do they involve making provision for the disciplining of members other than the complainer.  As a matter of fact, a particular union member may be unhappy about the response to his complaint or may consider that he has suffered a detriment in some way, in not having his complaint upheld.  That is not, however, to say that he has suffered the imposition of a sanction or been disciplined in any way.  A member who is seeking to litigate might, for instance, feel that he has suffered a detriment if a complaint that he should have been afforded legal aid by his union is not upheld, since he will then have to fund his own legal representation or refrain from litigating.  We do not see that that shows that a grievance procedure rule relates to disciplinary proceedings.  As the CO said in the case of Fenton v GMB Decision D/16-20/04, at paragraph 35:
“... a rule contained in a Union rule book cannot properly be described as a rule relating to disciplinary proceedings just because its operation may result in a decision contrary to the wishes of a particular member or in some detriment to that member.” 

36.	As regards the question of whether a rule relates to disciplinary proceedings, we consider that it requires to be approached in the following manner.  It is a fundamental characteristic of any disciplinary proceedings that they include the conferring on one party to them of the power to impose sanction on the other party.  A rule which relates to disciplinary proceedings is, accordingly, a rule which can properly be said to relate to proceedings which have, as a minimum, that characteristic.  Whilst rules can relate to various other forms of proceeding, they cannot be said to relate to disciplinary proceedings if the power to impose sanctions is not comprised within them. 

37.	A rule relating to disciplinary proceedings will often provide what may or must be done by each party to those proceedings at the various stages of the process and it will usually not only expressly confer the power to impose sanctions but also specify those sanctions in some way. 

38.	Union rules may also provide for grievance procedures, as in this case.  If disciplinary proceedings, based on the same subject matter as a particular grievance procedure, arise at any stage (whether at the beginning of, during or after a grievance procedure), does that mean that the grievance rule should then be regarded as a rule relating to disciplinary proceedings?  We pose that question in those terms because it seemed that the essence of the Appellant’s argument was that it should. 

39.	We are not, however, persuaded that the Appellant is correct. 

40.	We do not see that as a matter of principle, the fact that disciplinary proceedings occur in addition to the operation of a grievance procedure means that the rules which state how the grievance procedure is to operate amount to rules relating to disciplinary proceedings.  If that approach were correct, then whenever disciplinary proceedings did not occur the grievance rules would not relate to such proceedings but when they did, they would so relate.  That cannot be right.  Either the rules, as written, relate to disciplinary procedures or they do not;  the matter does not, in our view, fall to be tested by reference to what has happened in a particular case.   The task for the CO was one of interpretation.  In doing so, the CO took account not only of the literal wording of rule 6 but, correctly in our view, of its place in the structure of the rules:  rule 5 was the disciplinary rule.  Rule 6 was different:  it was a grievance rule to do with the processing of complaints.  We agree.  These rules are distinct and different.  The fact that the exercise of rule 5 powers occurs or may occur in respect of something which is or was also the subject of a grievance does not alter the characterisation of rule 6.  

41.	On the facts of this case as found by the CO, there was certainly a relationship between the grievance procedure that was instituted and the disciplinary proceedings that ensued.  In a sense one followed the other in that the lodging of the disciplinary charges followed immediately after the grievance ended and their subject matter arose from the events during the progress of the grievance procedure.  We do not, however, consider that that indicates that the nature of the rule is that it relates to disciplinary proceedings.  Further, even if it is assumed (contrary to the CO’s findings of fact) that the Respondents actually intended to institute disciplinary proceedings all along from the time that the Appellant was first suspended and that the suspension of the Appellant on 11 January 2006 amounted to the imposition of a rule 5.5 sanction (contrary to our view as already explained), that would not affect the way in which rule 6 falls to be read.  It might have made the Respondents vulnerable to accusations of prejudgment in their exercise of  their rule 5 powers had they ultimately sanctioned the Appellant for his conduct towards Ms Metcalf at the Christmas lunch but that would have been another matter.  The Appellant was not, of course, sanctioned in respect of the Christmas lunch matter at all;  the sanction imposed on him was in respect of different and later conduct towards the Regional Secretary.

42.	Thus we are readily satisfied that the CO has not erred in law in respect of his decision that he had no jurisdiction to entertain the first two complaints.

Rule 5 
43.	The Appellant’s complaint here was that Mr Nelson had breached rule 5.5 by bringing a complaint against him on 12 July 2006.  The reference is, of course, to Mr Nelson having lodged a series of “charges” against him, at the meeting of the REC on that date. 

44.	The CO’s decision was that rule 5.5 was not engaged and we are in full agreement with him.  That rule, as we have already observed, empowers the bodies referred to in it, to impose certain sanctions in respect of certain “offences”.  It says nothing about the circumstances in which those bodies may come to be considering whether such offences have occurred and whether such sanctions should be imposed.  It says nothing about who may bring the possibility of a relevant ‘offence’ to the notice of those bodies or in what capacity a person may do so.  The Respondents’ document giving guidance on the rulebook provides that the Regional Secretary is the only person who can trigger rule 5 disciplinary hearings and it is evident that, in practice, that that is what happens but that is beside the point so far as the issue that the CO had to consider is concerned.  The task for him was to construe the rule and only the rule. 

45.	The CO also indicated how he would have decided the point if it had been the case that the complaint required, in terms of the rules, to have been triggered by the Regional Secretary. He considered the facts which included the terms of the documents that were relied on as evidence of the offending conduct and decided that, as a matter of fact, the charges were laid by Mr Nelson in his capacity as Regional Secretary.  There is no basis on which we could interfere with that finding of fact nor was it suggested that there was.  In those circumstances, even if the rule could somehow be interpreted as providing that charges can only be laid by the Regional Secretary acting in his capacity as Regional Secretary, we are satisfied that that requirement was complied with. 

Disposal 
46.	We shall, in these circumstances, pronounce an order dismissing the appeal and upholding the decision of the CO.