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Appeal No. UKEAT/0352/12/KN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
10 December 2012
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
APPEARANCES
|
For the Appellant
|
MS
REHANA AZIB
(of Counsel)
Instructed by:
Bevan Brittain LLP
Solicitors
Fleet Place House
2 Fleet Place
Holborn Viaduct
London
EC4M 7RF
|
|
For the Respondent
|
MR SHABBIR LAKHA
(of Counsel)
Instructed by:
Tilbrook’s Solicitors
Quires Green
Walls Green
Willingale
Ongar
Essex
CM5 0QP
|
SUMMARY
TRADE UNION RIGHTS – Action short of dismissal
In an appeal against a finding that an
employee was subject to detriment for his trade union activities, the issue
arose as to the union’s independence. Appeal stayed: section 8(4) applied.
HIS HONOUR JUDGE McMULLEN QC
1.
The Claimant in these proceedings, Mr Bone, is the beneficiary of an
order of the Employment Tribunal sitting at Bury St Edmunds. On four occasions
the Respondent, the North Essex Partnership NHS Foundation Trust, subjected him
to detriment by its deliberate failure to act, for the main purpose of
preventing or deterring him from taking part at an appropriate time in the
activities of the Workers of England Trade Union. Against that decision the
Respondent appeals. The Respondent has at all times been represented by Ms
Rehana Azib of counsel. The Claimant at the Employment Tribunal, which sat for
some ten days, was represented by Mr Maflin, a trade union representative; today
by Mr Lakha of counsel. Reasons were sent to the parties on 1 March 2012 and the
events with which the appeal is concerned took place in 2010.
2.
The claims originally before the Employment Tribunal fall under section
146 of the Trade Union and Labour Relations (Consolidation) Act 1992.
They were accompanied by claims under the Race Relations Act; broadly
speaking that the Claimant had been disadvantaged by the Respondent because of
his Englishness. We appreciate there is more subtlety to the claims but those
were dismissed and there is no appeal from those.
3.
The central component of section 146 is that the protection applies in
respect of a worker who has been prevented or deterred from taking part in the
activities of an independent trade union at an appropriate time. Trade union
is a statutory term. A trade union is an organisation of workers; it can be
listed by the certification officer, Mr David Cockburn, as statutory officer
responsible for these amongst other matters under Part 1 of the 1992 Act. The
certification officer keeps a list. The trade union in this case, incorrectly
named by the Tribunal, is the Workers of England Union, is on the list. Mr
Bone is its leading light. Listing in England is evidence that the union is a
trade union; see section 2(4). We understand that over a period of 18 months an
application was pending before the certification officer for the union to go on
the list and it succeeded.
4.
The second stage in a mature trade union’s life is its certification as
an independent trade union. This means as follows:
“5 Meaning of ‘independent trade union’
In this Act an ‘independent trade union’ means a trade union
which –
(a) is not under the domination or
control of an employer or group of employers or of one of more employers’
associations, and
(b) is not liable to interference by
an employer or any such group or association (arising out of the provision of
financial or material support or by any other means whatsoever) tending towards
such control;
and references to ‘independence’, in relation to a trade union,
shall be construed accordingly.”
5.
The way in which independence is achieved is by a successful application
for certification. It has the primary effect of being conclusive as to the
independence of the trade union once the certificate is granted. Similarly, a
refusal or withdrawal or cancellation of such a certificate once in place is
conclusive that the trade union is not independent.
6.
The default position occurs where there is no decision either way and
this provided for by section 8(4) which says this:
“If any proceedings before a court, the Employment Appeal
Tribunal, the Central Arbitration Committee, ACAS or an employment tribunal a
question arises whether a trade union is independent and there is no
certificate of independence in force and no refusal, withdrawal or cancellation
of a certificate recorded in relation to that trade union –
(a) that question shall not be
decided in those proceedings, and
(b) the proceedings shall instead be
stayed or sisted until a certificate of independence has been issued or refused
by the Certification Officer.
(5) The body before whom the proceedings are stayed or sisted
may refer the question of the independence of the trade union to the
Certificate Officer who shall proceed in accordance with section 6 as on an
application by that trade union.”
7.
The issue of the independence of the union was not examined in any way
at the Employment Tribunal in its ten days of sitting. No point was taken by Ms
Azib for the Respondent and the Claimant did not present evidence of the
union’s independence. This is traditionally done in cases for example of
interim relief by the presentation of a certified copy of the certificate of
independence kept at the certification office.
8.
Inexplicably, the issue simply did not arise at the Employment Tribunal,
nor has it arisen in the Notice of Appeal, Respondent’s Answer or skeleton argument
here. But it occurred to us that there was an issue as to independence and it
goes to jurisdiction, notwithstanding that the matter was not raised hitherto.
Since the findings of the Tribunal are predicated upon the independence of the
union that must be a primary finding. This case falls within section 8(4).
There is no certificate and no refusal; that means that there can be no
decision on this in these proceedings, nor could there have been at the Employment
Tribunal, for the only person who can make that decision is the certification
officer. The issue should have been spotted and the proceedings stayed. The
only power we have is to stay, pending the application.
9.
Mr Bone has told us through counsel that he will himself make the
application; that will require some time. The alternative route within section
8(4) is for reference to be made judicially but that is not sought. It is
common ground that this should be three months so that the parties can report
back. This will be done under case management powers reserved to me if at all
practicable and we will take the matter further once the issue is resolved or
any further directions are given.
10.
It is accepted by counsel before us that there may be issues arising even
if a certificate of independence is given, as to when it is effective. In
other words; does it have any effect from a date before the certificate or does
the certification officer have power to say when in time prior to the actual
certificate the union was independent?
11.
The second matter flagged up by Ms Azib and by Mr Lakha is as to the
disposition of this appeal. If certification of independence comes to nought
then it is possible that this appeal could be disposed of by consent. Both
parties are represented properly and recognise the critical absence of the certificate
of independence. It would be for them to decide whether to put a joint
application before us under the Practice Direction to allow the appeal by
consent, recognising the technical problem which has now arisen. That, of
course, is a matter which will be discussed over the next three months during
the stay.
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