Henderson v GMB UKEAT/0294/16/LA
Appeal against the dismissal of the Appellant's complaint by the Certification Officer (the CO), the issue at the heart of this appeal being whether the CO dealt fairly and in a legally correct manner with the contention that the Appellant had been unreasonably excluded from becoming a candidate for the office of General Secretary of the GMB. Appeal allowed and the CO order was set aside (although the election would not be re-run).
The Appellant was running for nomination to become General Secretary of the GMB. In short, he complained about the nomination process which was rejected by the CO. He appealed on the basis that the CO had not determined the true complaint made by the Appellant. The Appellant's complaint was not about what was the correct interpretation of a particular rule but that the Union had misapplied the rule and used its wrong interpretation of it as a vehicle for repressing the Appellant's campaign and disciplining officials of his branch who proposed to support his nomination as a candidate.
The EAT allowed the appeal. There was a plain breach of section 47(1). The Union acted "unreasonably" in excluding the Appellant as a candidate. The essence of the breach was using a wrong interpretation of by-law 13 as a means of hampering the Appellant's ability to obtain nominations from his branch and potential nominations from other branches. It was also a breach of the Union's rule (i.e. by-law 13) falling within section 108A(1) of the 1992 Act, relating to one of the matters in section 108A(2), namely "the appointment or election of a person to, or the removal of a person from, any office" (see section 108A(2)(a)).
Appeal No. UKEAT/0294/16/LA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 14 & 17 March 2017
THE HONOURABLE MR JUSTICE KERR
Transcript of Proceedings
For the Appellant MR NICK DE MARCO (of Counsel) Bar Pro Bono Scheme
For the Respondent MR OLIVER SEGAL
(One of Her Majesty's Counsel) Instructed by: Slater & Gordon UK LLP 50-52 Chancery Lane London WC2A 1HL**SUMMARY**
The Certification Officer had not determined the true complaint made by the Appellant. The Certification Officer had wrongly focused on identifying the correct construction of a particular rule of the Respondent Trade Union, which the Union had misapplied in such a way as to repress unlawfully the Appellant's attempts to become a candidate for the office of General Secretary and Treasurer of the Union.
The thrust of the Appellant's complaint was not about what was the correct interpretation of the rule. That was common ground. It was that the Union had misapplied the rule and used its wrong interpretation of it as a vehicle for repressing the Appellant's campaign and disciplining officials of his branch who proposed to support his nomination as a candidate. The Appellant was entitled to a finding that the Union had thereby acted in plain breach of section 47 of the Trade Union and Labour Relations (Consolidation) Act 1992.
An amendment to the grounds of complaint had not been necessary. If, however, the amendment were regarded as having been necessary, the Certification Officer had been wrong not to allow a late amendment that would have made the wording of the complaint reflect the true nature of the Appellant's case. The amendment, though late, did not introduce any new facts or rely on any new cause of action of which the Union did not have prior notice.
The Certification Officer's alternative reasoning and conclusion that the Appellant's case was "disingenuous" was perverse and could not stand. The Appellant was as much entitled to the protection of sections 47 and 108A of the 1992 Act as any other member of the Union and was not to be denied a remedy merely because he had failed to contact other branches before complaining to the Union about its rules; nor because he could be motivated by hostility to the Union's leadership or a desire to cause difficulties for it. The Appellant's application to the Certification Officer had not been an abuse of process.
The Appeal Tribunal would make a declaration of breach of section 47 and section 108A of the 1992 Act, but declined to order the election to be re-run, as the election results had been announced over 15 months before the hearing; the Appellant's chances of becoming a candidate would have been slender even without the Union's unlawful interference with his campaign.**THE HONOURABLE MR JUSTICE KERR**
- This case arises from the Appellant's (or Mr Henderson's) unsuccessful attempt to become a candidate for the position of General Secretary and Treasurer (General Secretary) of the Respondent Union (the GMB or the Union). The appeal was initially turned down on the papers by HHJ David Richardson, but HHJ Shanks subsequently allowed it to proceed after an oral hearing.
- Mr Henderson took his case to the Certification Officer (the CO). The issue at the heart of this appeal is whether the CO dealt fairly and in a legally correct manner with the contention that the Appellant had been unreasonably excluded from becoming a candidate for the office of General Secretary of the GMB.
- Trade unions owe duties to their members at common law and via statute, and vice versa. A union's rules take effect as a contract between the member and the union. They are interpreted in the spirit in which they are made and not as if they were statutory provisions or commercial contracts. The law reports are replete with accounts of celebrated litigious battles, some involving illustrious figures in the annals of the trade union movement. The obligations of trade unions under their rules are supplemented by statute.
- Section 47 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) provides that no member of a trade union shall be unreasonably excluded from standing as a candidate for office. Section 55(1) provides:
"(1) A person having a sufficient interest … who claims that a trade union has failed to comply with any of the requirements of this Chapter may apply to the Certification Officer for a declaration to that effect."
- It is also necessary to refer to section 55(4) and (5):
"(4) Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall specify those steps in the declaration.
(5) Whether he makes or refuses a declaration, he shall give reasons for his decision in writing; and the reasons may be accompanied by written observations on any matter arising from, or connected with, the proceedings."
- Section 108A(1) and (2) include the following:
"(1) A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect …
(2) The matters are -
(a) the appointment or election of a person to, or the removal of a person from, any office; …"
- By section 108B(2):
"(2) If he accepts an application under section 108A the Certification Officer -
(a) shall make such enquiries as he thinks fit,
(b) shall give the applicant and the union an opportunity to be heard,
(d) may make or refuse the declaration asked for, and
(e) shall, whether he makes or refuses the declaration, give reasons for his decision in writing."
- Section 108B(3) makes provision for an "enforcement order", which is, broadly speaking, an order requiring the union to take remedial steps specified in the order or abstain from certain acts or threatened acts in future.
- By section 256(1):
"(1) Except in relation to matters as to which express provision is made by or under an enactment, the Certification Officer may regulate the procedure to be followed -
(a) on any application or complaint made to him, …"
- It is common ground that the role of the CO in a case such as this is that of adjudication and that he must deal fairly with procedural matters when adjudicating on a case and must reach conclusions that are rationally based and open to him on the evidence. It is common ground, further, that in relation to the amendment of a claim the so-called "Selkent principles" should be applied (derived from Selkent Bus Co Ltd v Moore  ICR 836, per Mummery J (as he then was) at 843F-844C).
- Mr De Marco, for Mr Henderson, referred me to certain guidance notes issued by the CO in August 2013. They make reference to the "overriding objective" expressed as "to determine all complaints fairly and justly". According to the same guidance notes, that includes, so far as practicable, the following:
1.1. dealing with the issues in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
1.2. avoiding unnecessary formality and allowing flexibility in the proceedings where appropriate; and
1.3. avoiding delay, so far as is compatible with a proper consideration of the issues.
1.4. ensuring the parties are able to participate fully in the proceedings."
- There is a right of appeal to this Appeal Tribunal on a point of law (see section 108C of the 1992 Act and section 21(1)(d) of the Employment Tribunals Act 1996 (the 1996 Act)).
- Finally, I need to mention that by section 35(1) of the 1996 Act: when disposing of such an appeal this Appeal Tribunal may exercise any of the powers of the CO or remit the case back to him.
- The facts of the case are as follows. In 2004, Mr Henderson joined the GMB. He does not enjoy good relations with its leadership. He has had various run-ins with the leadership and has been dismissed by the Union as a full-time officer. He is a member of the London Central General branch, called branch X58. He has litigated against the Union.
- In October 2014, the General Secretary of the Union, Sir Paul Kenny (as he has since become), told the Central Executive Council (CEC) that there would be an election for the office of General Secretary in 2015. On 7 October 2014, he issued a circular to staff (not lay officials such as branch secretaries). It stated in material part as follows:
"It is important that every Employee fully understands that any interference in the GMB election process will be deemed a serious matter of the highest level. Irrespective of when the nominations period opens any behaviour including canvassing, promoting or campaigning on the suitability or candidature of any person is not allowed from this date onward. Any suggestion that the rules don't start until the nomination period begins holds no validity whatsoever. It is inevitable that much speculation will abound both inside and outside the Union. Potential Candidates will of course be asked a pressing question and as individuals they are of course completely free to declare their intention at any time. …"
- It is not suggested that the contents of that circular reflected any rule then in force. The rules specifically governing the then forthcoming 2015 election had not yet been adopted.
- In early 2015, the Appellant made public his intention to seek nomination as a candidate. His intention to do so was published in various publications. On 6 June 2015, the CEC decided upon the timetable for the election. Under the Union's rules (rule 15), the CEC asks branches for nominations six months before the end of the incumbent's five year term of office.
- The CEC is empowered under the same rule to adopt by-laws (1) setting the minimum number of branch nominations required to become a candidate, (2) which may "ban or allow and control canvassing (campaigning for votes) … by or on behalf of candidates", and (3) which may decide the format of "candidates' election addresses" and how they may be disseminated.
- For the 2015 election for General Secretary, the CEC adopted the following by-laws, among others:
2. A nominee who receives fewer than 30 valid nominations shall not qualify for candidature.
Canvassing and hustings*
13. No text, circular or other material (whether written, typed or printed and whether communicated electronically or otherwise) shall be issued on behalf of any candidate in the election other than an election address that accords with by-laws 6 to 12 inclusive.
16. No candidate and no officer, official or employee of the Union shall for the purposes of supporting a candidate access or use any information contained on the Union's membership or other databases, records or lists, including the names and/or addresses or other contact details of members or officials of the Union."
- At its meeting on 6 June 2015, the CEC set a deadline of 28 August 2015 for informing it (the CEC) of nominations, with the ballot period set at 14 October to 4 November 2015.
- In June 2015, the Appellant did not contact any branches to seek nominations. His evidence to the CO, recorded at paragraph 37 of his Decision, was that he did not have email contact details to enable to him to do so and that he intended to seek nomination by his own branch first and then contact other branches for which he had email contact addresses. On 19 June 2015, a circular was sent to branches setting out the timetable for the election.
- The Appellant learned that nominations were open and contacted his own branch. By late June 2015, the circular to branches with details of the election timetable had not reached the Appellant's branch, X58. The circular eventually reached branch X58 sometime in July 2015 after Mr Steve Forrest, the secretary, had specifically requested it. The delay in receiving it became the subject of complaint 3, with which I am not concerned.
- As I understand the CO's Decision, it was while the branch was awaiting receipt of that circular that, on 1 July 2015, the Appellant made a written complaint that by-laws 13 to 17 effectively debarred himself and other lay members of the Union from standing in the election, because they prevented him from contacting branches to inform them that they were seeking nomination, and explaining why.
- I have not been shown the actual document setting out this complaint. Mr Segal QC, for the Union, has quoted part of it thus in his skeleton argument. He said that the complaint was, among other things, that by-laws 13 to 17 were making it impossible for someone in his position effectively to stand in the election in that they:
"prevent us from contacting branches and therefore notifying them of the intention to seek nomination … [they] prevent potential nominees from contacting branches to inform them that they are seeking nomination and explaining why … I cannot have access to contact details and I am not allowed to contact them to inform them of my intentions even if I did"
- According to Mr Segal's skeleton argument, the Appellant sought a repeal of:
"these bye laws [sic] that prevents [sic] lay members from informing branches that they are seeking nominations"
- On 22 July 2015, the Appellant gave further details of his complaint to the Union's Finance and General Purposes Committee (see paragraph 17 of the CO's Decision). Neither party showed me any document containing those further details. At some point in July 2015 - it is not clear when - the president of branch X58 (Mr Forrest) and the branch secretary (Ms Maria Franco) issued an undated circular newsletter notifying branch members that the branch meeting would take place on 27 July 2015 and that the Appellant would be seeking nomination by the branch.
- The exact words of the circular, which was among the CO's papers, were shown to me. The material passage says this:
"We have been informed by a branch member Keith Henderson that he will be seeking his own Branches [sic] nomination as he has announced his intention to enter the ballot for the General Secretary."
- That circular came to the attention of the London Regional secretary, Mr Paul Hayes, and the London Returning Officer, Mr Tony Warr. Mr Hayes emailed Mr Forrest on 23 July 2015. The words of that email, so far as material, are as follows:
"The Newsletter goes on to state that Keith Henderson informed the Branch that he will be seeking a nomination from the X58 Branch as it is his intention to enter the ballot for the position of General Secretary. This is a very serious matter and by communicating this contravenes the By-laws on canvassing in this election.
I am asking, in the strongest possible terms, that the Newsletter be recalled, due the serious breach of the By-laws, and for not presenting all of the facts accurately. If it [is] still your intention to report on these matters, at your Branch meeting on 27th July 2015, then you do so stating all the facts and not cherry picking in an attempt to discredit or bring the GMB into disrepute. I am requesting your immediate written confirmation of this failing which I will have no alternative than to write to all X58 Branch members direct.
I will be instructing Michelle Bacon to attend your Branch meeting to ensure these instructions are carried out."
- I was not shown Mr Warr's email of the next day, but the CO's Decision referred to it at paragraph 15 thus:
"15. … Mr Tony Warr … emailed Mr Forrest on 24 July to inform him that by sending out that newsletter by-law 13 had been breached. …"
- On 27 July 2015, the branch met and voted to nominate the Appellant. On 30 July 2015, a Mr Wylie of the Union wrote to the Appellant informing him that the by-laws were not a breach of section 47 of the 1992 Act and that the Finance and General Purposes Committee were satisfied of that and had dismissed his complaint. I do not have the words of that letter save for the part of it quoted by the Appellant in a subsequent witness statement as follows:
"The committee gave consideration to your complaint and determined that they were satisfied that, as the by-laws were drawn by a solicitor acting on behalf of the Election Inquiry Team, that the by-laws were agreed and enacted by the recall of congress 2005, that the certification officer had considered the by-laws and had no concerns with them, and the legal advice received, the by-laws in question (by-laws 13 and 16) did not breach [the 1992 Act] section 47."
- The next day the Appellant appealed to the Appeals Committee of the CEC.
- On 3 August 2015, Mr Hayes wrote to all London Central X58 branch members saying he had suspended Mr Forrest and Ms Franco. The ground of the suspension was having allegedly breached by-law 13 by not complying with an instruction of the Regional Secretary to withdraw the offending circular newsletter. I pause to note that the ground of suspension is now accepted by the Union as being ill-founded - the circular was not a breach of by-law 13 - but Mr Hayes and Mr Warr evidently thought it was at the time.
- Nominations closed on 17 August 2015. At the close of nominations and examination of the results of the process on 7 September 2015, the Finance and General Purposes Committee found that four nominees had more than 30 nominations from branches and qualified as candidates. The Appellant, with only one nomination, did not.
- The next day, 8 September 2015, the Appeals Committee of the CEC dismissed the Appellant's appeal in the matter of his complaint. I have not seen the letter to the Appellant but according to the CO's Decision, the Appeals Committee of the CEC was "satisfied that the by-laws were fit for purpose and complied with the law".
- This meant that internal remedies had been exhausted, which opened the way for a complaint to the CO, made on 16 October 2015. The written complaint included the following matters relevant to this appeal. First, Mr Henderson complained that he could not contact branches. Secondly, he relied on "Breach of By-laws 13-16", saying:
"It is not understood as to how any given branch/union member can put themselves forward as a candidate in these elections, if, in accordance with By-law 13-16 they are prevented from contacting branches to inform them that they are seeking nominations and explaining why they wish to stand and what their manifesto would be."
- Thirdly, he complained that Mr Kenny's memorandum in 2014, from which he quoted, "interferes with the impartiality, fairness and democratic election process". Fourthly, he complained about the way that his formal complaint to the Union had been dealt with. Fifthly, although not a lawyer and unrepresented, he stated that his:
"… complaint is in relation to the interpretation of the rules and how they are being applied in reality now in 2015." [My emphasis]
- Sixthly, among the matters of complaint in that regard was that the Union had caused what he called "[r]epercussions on my own union branch". He complained that his branch secretary and president had been suspended for having notified branch members of his intention to stand and attended a meeting at which he would seek nomination by the branch. Seventhly, he added that the Union had:
"… misinterpreted the by-law 13 which clearly refers to candidates in the election period and not nominees in the nomination period and have suspended my elected branch secretary and president from office pending a disciplinary hearing on this basis and that a branch newsletter was sent out to GMB members stating that I was seeking the branch's nomination … which is regarded by the GMB as a breach of by-law 13.
The wording of by-laws 13 and 16 only states candidates and not nominees.
By the GMB extending the by-laws 13 and 16 to the nomination period as well as the election period this means that I cannot inform branches or other members that I am seeking nominations to stand in the election …"
- He added a summary at the end of his detailed contentions as follows:
"I believe that the GMB made it impossible for lay members like me to become candidates in the election of General Secretary and Treasurer by making it impossible to seek nominations in breach of the [1992 Act], section 47."
Such was the Appellant's complaint so far as relevant to this appeal.
- On 11 November 2015, while that complaint was pending, the London Regional Committee heard the complaint against Mr Forrest and Ms Franco and upheld it, endorsing the proposition, now agreed to be wrong in law, that they had breached by-law 13 by circulating the offending circular newsletter. Mr Forrest was removed from office as branch president and banned from office or attending congress for three years. Ms Franco was removed and similarly banned but for two years. They both appealed.
- On 12 November 2015, the result of the election as between the four candidates was announced. The winner was Mr Tim Roache, who was declared elected.
- On 17 November 2015, the Union provided written reasons for the sanctions imposed on the branch secretary and president in the following terms, not set out in the CO's Decision but quoted at paragraph 24 of the Appellant's witness statement thus:
"[By] your actions of sending a deliberately contrived and misleading newsletter to all branch members canvassing support for Keith Henderson in the forthcoming election for General Secretary and Treasurer you were in breach of Election By-Law 13 and by ignoring the instructions of the Regional Secretary and the Regional Returning Officer, we find that you were in breach of Rules 35.11, 35.13 and Rule 35.15 of the GMB Rule book."
Thus, the reasons given by the Union for suspending the two branch officials were explicitly linked to the proposed candidature of the Appellant.
- On 17 December 2015, the Union's solicitors responded to the application to the CO. I have not seen the actual response document, but it is summarised at paragraph 25 of the CO's Decision thus:
"25. … the solicitors appeared to accept that by-law 13 applied to someone in Mr Henderson's position at the relevant time to prevent any text, circular or other written material being issued on his behalf but that it did not prevent him from contacting branches by telephone or attending branch meetings. …"
The CO's use of the word "accept" is curious, but I now understand it is common ground that what it meant was that the Union was advancing the proposition, now agreed to be erroneous, that, in the CO's words:
"25. … by-law 13 applied to someone in Mr Henderson's position … to prevent any text, circular or other written material being issued on his behalf [as well as the correct proposition that] it did not prevent him from contacting branches by telephone or attending branch meetings. …"
- That was how matters stood over the Christmas and New Year period. The CO then corresponded with the Appellant - not with his lawyer, for he had none - in an attempt to agree with him what his case was. I have not been shown that correspondence. I am told that it led to the Appellant, before he obtained legal assistance from counsel, agreeing to a formulation of his complaints by the CO or someone in his office, in the terms set out in the Decision.
- Those included complaint 1, the only one relevant in this appeal, which was formulated in the following terms:
"On or around 1 July 2015 GMB breached section 47(1) of the 1992 Act in that the Union's by-law 13 relating to the Election of General Secretary and Treasurer 2015 prevented Mr Henderson, and other lay members of the Union, from contacting branches to advise them of their intention to stand as a candidate in the election for the post of General Secretary and Treasurer."
- On 2 February 2016, the appeals of Ms Franco and Mr Forrest were heard. On 5 February 2016, the Union wrote to them saying their appeals were allowed on the basis that they had not breached by-law 13 after all. On the same day the Union responded to the formulation of the Appellant's complaints by seeking to amend its response to the complaints, adding, in the case of complaint 1, the following:
"Further, and in any event, By-Law 13 applies only to those who are candidates and therefore did not apply to Mr Henderson at a time when he was seeking nominations as a candidate, and therefore [by-law] 13 did not prevent him from contacting branches as alleged."
- Mr Thomas Oxton, a barrister, became involved on the Appellant's behalf through the Bar Pro Bono Unit sometime in January or February 2016, but was not involved in the correspondence in which the terms of the Appellant's complaints were formulated by the CO's office. Mr Oxton produced a skeleton argument on 20 February 2016, which I have not seen.
- On the same day, the Appellant produced a signed witness statement, which I understand was drafted by him but with assistance from Mr Oxton. Under the heading of complaint 1 he said, among other things, the following:
"22. … Sir Paul Kenny's memorandum dated 7 October 2014 … states [and he quoted from it].
23. The memorandum referred to above matters because in neither the Rule Book nor the by-laws is it stated that a person seeking nominations is permitted to attend branch meetings so as to solicit nominations. Consequently, my attendance would necessarily have been deemed to be "unusual"."
At paragraph 7:
"7. By-law 13 prohibited me from contacting in any way GMB branches so as to advise them that I would be seeking nominations. It therefore prevented me from seeking nominations from any and all union branches."
At paragraph 15:
"15. My complaint relates to the interpretation of the election by-laws and how in reality they are now being applied, which results in unequal treatment between lay members and leadership - favoured members who were seeking to become candidates in the 2015 leadership elections."
- At paragraphs 24 and 25, the Appellant complained of the treatment of the branch officers, intended, as he said at paragraph 25, in his belief:
"25. … to impress upon other branches and their officers that dire consequences would follow if they were to support me. It was an intimidation tactic, which also contributed to the unreasonable exclusion of me that contravened section 47(1) of the 1992 Act." [My emphasis]
- At paragraph 26, he complained of the wrong interpretation of by-law 13, which had been used, he said, by Mr Warr against the two branch officials in Mr Warr's email of 24 July 2015. At paragraph 27, he quoted extensively from counsel's opinion obtained by one of the two branch officials, supporting what is now agreed to be the correct interpretation of that by-law. At paragraph 28, he stated:
"28. If the union has wrongly extended by-law 13 to nominees then the union has unreasonably excluded me and other members from standing in the election. This breaches section 47(1) of the 1992 Act."
- Mr Segal QC, then and now appearing for the Union, prepared a skeleton argument dated 21 February 2016. In that skeleton argument he said that at the time of the hearing before the CO "Mr Henderson (and now GMB also) accepted that by-law 13 did not apply [except] to candidates", and Mr Segal QC quoted to me from his earlier skeleton argument used at the hearing before the CO, the following passage:
"In any event, by-law 13 does not prevent candidates (however that is to be construed) from contacting branches. On its proper construction, it only prevents candidates from producing written campaigning material. If it applied to potential nominees, it would not prevent them from stating (whether in writing or orally) that they were seeking nominations; nor would it prevent them from orally pressing their case for nomination either by phone or at meetings."
- Thus did Mr Segal QC express the Union's position as at the hearing before the CO. Preventing members of branch X58 from being told that the Appellant intended to seek nomination was of course the very thing that the Union had sought to achieve by its demand that Mr Forrest and Ms Franco should withdraw the circular newsletter to branch members, which did just that.
- The hearing before the CO took place on 1 March 2016. At the hearing, Mr Oxton made a late application to amend complaint 1 by adding to it after the reference to by-law 13 the words "or by-law 13 as interpreted by the Union". Mr Segal QC opposed the amendment, arguing, among other things, that it was made late and was unfair on the Union, since it would or might have called other evidence had it known that the added words formed part of the case it had to meet.
- Neither party applied for an adjournment, nor did either party contingently apply for an adjournment in the event that permission to make the amendment was granted. As it was not granted, the question of an adjournment did not arise. The CO refused the amendment sought by Mr Oxton. The reasons he gave for that refusal were as follows (paragraph 3):
"3. … Having heard submissions on this application, I refused to allow the amendment on the grounds of its lateness and the absence of evidence which the Union may have wished to introduce if the case had been pleaded in this way in a timely manner."
- On 22 March 2016, the CO issued his written Decision. In it, he set out the facts, the relevant statutory provisions and the relevant rules and by-laws of the Union. He then dealt with complaint 1 at paragraphs 30 to 38. He dismissed it. His reasoning was as follows:
(1) He acknowledged (see paragraph 33) Mr Oxton's submission that the Union's wrong interpretation of by-law 13 had meant that:
"33. … a potential nominee was precluded from publishing any address in any form, whether in writing or "otherwise", to secure the support of 30 branches. …"
(2) He acknowledged also that Mr Oxton relied on the disciplining of the two branch officials and the Union's response to the Appellant's complaint as part of his case, and on Mr Kenny's prior circular in October 2014 as part of his case.
(3) He acknowledged Mr Segal QC's submission that the GMB was a very large Union and that it was reasonable to have a requirement that a person must, to become a candidate for the top job, obtain at least 30 branch nominations.
(4) He noted Mr Segal QC's submission that the Appellant's complaint was really about that requirement and not about the way by-law 13 had been applied. He had publicly announced his intention to stand in the first half of 2015 before by-law 13 was adopted.
(5) He noted Mr Segal QC's acceptance that by-law 13 did not, correctly construed, apply to potential nominees, only to candidates and therefore not to the Appellant. Therefore, submitted Mr Segal QC to the CO, by-law 13 was not the obstacle to the Appellant's candidature; the obstacle was his inability to obtain sufficient branch nominations and his failure to contact branches to seek nomination, other than his own.
(6) The CO then proceeded to decide the first complaint in the light of those competing submissions. He started from the proposition that there was no doubt that the Appellant was excluded from being a candidate in the election; the question was whether he had been unreasonably excluded.
(7) As to by-law 13, the CO stated at paragraph 35 that the Appellant's argument was that the unreasonableness of his exclusion resulted not from the requirement to secure 30 branch nominations but from by-law 13 (paragraph 35):
"35. … which, it is alleged, prevented Mr Henderson and other lay members from contacting branches to advise them of their intention to stand as a candidate."
(8) The CO then reasoned, correctly, that the right construction of by-law 13 was now agreed. It impacts only on material issued on behalf of a candidate, not a potential nominee. He therefore reasoned that by-law 13 was not a problem for the Appellant and that (paragraph 36) "[a]ccordingly, complaint one is misconceived".
(9) He went on to say that the Appellant's case as advanced before him (paragraph 37) "addresses a different point to the one made in this complaint". He went on to deal with that case at paragraph 37 of his Decision. He referred to the Appellant's argument that:
"… his failure to secure 30 nominations is the direct result of his fear that by approaching branches he would be considered to be in breach of by-law 13. …"
(10) He rejected that argument. He said that the Appellant had not previously been reticent about announcing publicly his intended candidature. He referred to the Appellant's evidence that he lacked contact details for other branches and that he intended to contact other branches, insofar as he could obtain their contact details, after securing the nomination of his own branch.
(11) He referred to the Appellant's argument that he could not do this because of the way in which Mr Forrest and Ms Franco had been treated. He dismissed as "disingenuous" the Appellant's approach to securing 30 nominations. He regarded the Appellant as "looking for a course of action", a phrase that may have been intended to read "looking for a cause of action".
(12) He accepted, in effect, the Union's contention that the Appellant was not serious about contacting branches to secure nomination and only wanted to use his complaint as a vehicle for venting his well-known hostility to the Union leadership, which indeed had blossomed into litigation on other fronts following his dismissal as a full-time officer.
(13) The CO thus concluded that the complaint was:
"… not only misconceived as a matter of law but is also without merit in the broader way that it has been put."
- The appeal is against the CO's refusal to permit the amendment. The grounds of the appeal are unlawful failure to exercise discretion properly, procedural unfairness by denying the Appellant the opportunity to have his real complaint determined and perversity both in refusing permission to make the amendment and in the treatment of what the CO called the Appellant's "different case", which he dealt with at paragraph 37 of his Decision.
- Mr De Marco made the following main submissions on the Appellant's behalf:
(1) A reasonable CO could not refuse to allow the amendment, applying the factors identified by Mummery LJ in Selkent. The amendment did no more than clarify what had been the Appellant's case all along. It did not plead a new cause of action or make new factual allegations.
(2) It should not have been refused on delay grounds alone, in the absence of any prejudice to the Union arising from it. The Union had long known the case it had to meet, and the amendment did not alter that. The paramount considerations of relative injustice and hardship were all one way.
(3) It was procedurally unfair to refuse the amendment. The CO's restricted reading of complaint 1 bestowed an unmeritorious windfall technical defence on the Union, arising from its belated admission that it had misconstrued by-law 13, when the real sting of the Appellant's case against the Union was, as had been clear throughout, the manner in which by-law 13 had been interpreted and operated and not what its true meaning was.
(4) To refuse the amendment, submitted Mr De Marco, was contrary to the overriding objective, which the CO himself had adopted in his guidance document and which included the need to determine all complaints fairly and justly; including, so far as practicable, dealing with issues in ways proportionate to the importance of the issues of the case, avoiding unnecessary formality and allowing flexibility in the proceedings where appropriate.
(5) The CO had fallen into the error of treating the formulation of complaint 1 as a straitjacket to be adhered to slavishly, which impaired discharge of his core duty to hear and determine the case in accordance with the law and the evidence (cf Parekh v London Borough of Brent .
(6) The reasons for the Decision were inadequate to meet the standard of reasons required. The CO said only that the application was made late and that the Union might have wished to introduce other evidence if the case had been pleaded so as to include the amendment, without saying what that evidence might have been or why the Union would not be expected to have called it anyway.
(7) As for paragraph 37 of the Decision, the CO did not properly address the main point made by the Appellant, which was that the Union had relied on its wrong interpretation of by-law 13 to engage in intimidatory conduct intended to deter the Appellant's branch and, by extension, other branches from having the temerity to nominate him.
(8) Specifically, it was obvious that his primary case was that he and his branch officials were wrongly told that his intention to seek nomination could not be publicised in advance to members of branches as this would amount to unlawful canvassing. The CO had sidestepped and avoided determining whether the Union was guilty of that unlawful conduct towards the Appellant. Accordingly, paragraph 37 was inadequately reasoned and perverse.
- Mr Segal QC, for the Union, made the following main submissions on behalf of his client:
(1) The application to amend was made very late, during closing submissions. The decision to refuse it was a case management decision, raising a very high hurdle for a party wishing to overturn the exercise of discretion as to whether it should be granted or refused. Further, the formulation of complaint 1 was agreed to by the Appellant himself.
(2) The essence of the Appellant's complaint was not that the Union was attempting to intimidate him and others by using a wrong interpretation of by-law 13 as a weapon against him and his supporters and potential supporters; the essence of his complaint was that he wanted and needed to contact branches to let them know that he was intending to seek nomination.
(3) At the time of the events in question, the Union was not seeking to prevent the Appellant from contacting branches orally. It never sought to stop him from telephoning branches if he could find contact details enabling him to do so. His problem was not having those contact details and not the Union's interpretation of by-law 13.
(4) By the time of the hearing before the CO, the Union had conceded that its interpretation of by-law 13 had been wrong and that the by-law applied to candidates only and not to potential nominees. It followed that the Appellant was not prevented from contacting branches in writing as well as orally. He had not done so prior to June 2015, and the CO was right to find that the real reason of his exclusion as a candidate was his inability to secure sufficient nominations.
(5) There was nothing wrong with the content of by-law 13 so as to make it unlawful, which was what the Appellant was alleging in complaint 1. That complaint was about the content of the by-law, not the manner in which it had been interpreted and applied. Further, complaint 1 alleged unlawful conduct "on or around 1 July 2015", whereas the branch's circular newsletter had not been criticised by Union officials until 23 July 2015.
(6) The reason why that circular newsletter was criticised was because it was perceived as canvassing, which means more than seeking nomination; it means saying why you are seeking nomination and would be a suitable candidate. Further, the criticisms of the London regional officials were levelled at Mr Forrest and Ms Franco, not the Appellant.
- I turn to my reasoning and conclusions on the issues in this appeal. To determine the appeal, it is first necessary to make some basic observations about what happened in this case in the period leading up to the making of the Appellant's complaint to the CO in October 2015.
- First, in relation to his complaint to the Union made on 1 July 2015, it is obvious from the words the Appellant used, particularly the concluding words, "I am not allowed to contact them to inform them of my intentions even if I did [have their contact details]", that his complaint included a complaint of wrongful interference in the process by which a potential candidate could secure a nomination from a branch. He was not just complaining about not possessing contact details; he was complaining that even if he had had the necessary contact details, he was not permitted to use them in an attempt to secure nominations from a branch.
- Next, I need to return to Mr Hayes' email of 23 July 2015 and the circular newsletter that Mr Hayes condemned in that email. The parties invited me to consider different interpretations of the email read together with the circular newsletter. The CO's interpretation was very clear, simple and, as far as it went, correct. It was at paragraph 15 of his Decision:
"15. … The branch circular came to the attention of the Regional Returning Officer, Mr Tony Warr, who emailed Mr Forrest on 24 July to inform him that by sending out that newsletter by-law 13 had been breached. Both Mr Warr and the Regional Secretary, Mr Hayes, required that the newsletter be recalled."
- Mr Segal QC submitted that the word "canvassing" used in Mr Hayes' email of 23 July 2015 showed that his objection to the circular newsletter was not that it informed branch members that the Appellant intended to seek nomination, but that Mr Hayes perceived it to be campaigning material and as such objectionable.
- Mr Segal QC characterised canvassing as the making of statements going beyond merely informing members that a person would be seeking nomination. Merely so informing members would not, he accepted, be canvassing, but the adding of campaigning statements to the effect that the person seeking nomination would be a good candidate and ought to be nominated, and giving reasons why that person ought to be nominated, would be canvassing, he submitted.
- Mr De Marco did not dispute that definition of canvassing but pointed out that the circular newsletter could not, according to that definition, be canvassing because it did no more than inform branch members that the Appellant intended to seek nomination; it did not go on to say that he would be a good candidate or why he would be a good candidate.
- The Union's real objection to the circular letter therefore was, Mr De Marco submitted, that it informed branch members of the Appellant's intention to seek nomination, something he and the branch were perfectly entitled to do and do in writing, and therefore constituted an improper interference with the Appellant's rights as a potential nominee and potential candidate under the rules.
- It is agreed, at any rate, that Mr Hayes and Mr Warr were saying that the sending out of the circular breached by-law 13. It is now common ground that this was incorrect; the circular did not breach by-law 13. It is easy to see why. By-law 13, beneath the sub-heading "Canvassing and hustings", prohibited the issuing "on behalf of any candidates" of what could loosely be called written campaigning material other than an election address issued in conformity with other relevant by-laws setting the parameters of such election addresses.
- By-law 13 obviously does not apply to potential nominees communicating with branches or branches communicating with their members informing them that a potential candidate is seeking the nomination of the branch. It only comes into play once a person has become a candidate by receiving at least 30 nominations. The Appellant had not yet received a single nomination, let alone 30.
- It was incumbent on the Appellant, in the usual way, to pursue his complaints internally within his Union before taking his case to the CO. He did so by means of his complaint, which was dealt with in Mr Wylie's letter of 30 July 2015, from which the Appellant quoted in his witness statement, as I have already observed.
- I do not have the exact terms in which the Appellant's complaint was expressed, but it is clear from the response that the Union did not directly address the issue of the correctness of the interpretation it now concedes was wrong but was applied by Mr Hayes and Mr Warr in July 2015. The response to the complaint merely said there was nothing unlawful about the by-laws themselves. It did not get to the heart of the matter, because it did not address the manner in which they were being applied.
- The subsequent suspension of Mr Forrest and Ms Franco showed that the Union was, at the time the Appellant's complaint was made, not applying by-law 13 correctly. The branch officials' offence was no offence at all, but was wrongly treated as one. The dismissal of the Appellant's appeal against dismissal of his complaint on 8 September 2015 again did not engage with the manner in which by-law 13 had been wrongly interpreted and applied in the case of branch X58.
- When the Appellant then made his complaint to the CO in mid-October 2015 it was plain from what he wrote to the CO that he was complaining about many things, including not least the following:
(1) breach by the Union of by-laws 13 to 16 because a candidate is "prevented from contacting branches to inform them that they are seeking nominations and explaining why they wish to stand and what their manifesto would be";
(2) that Mr Kenny's memorandum in October 2014 interfered with the impartiality and fairness of the democratic election process;
(3) that Mr Henderson's complaint to the Union had not been adequately dealt with;
(4) about "the interpretation of the rules and how they are being applied in reality now in 2015";
(5) about the suspension of his branch president and secretary for having notified branch members of his intention to stand and attend a meeting at which he would seek nomination by the branch;
(6) that the treatment of those two officials included the point that the Union had "misinterpreted the by-law 13";
(7) the point that the wording of by-laws 13 and 16 only refers to candidates and not to nominees;
(8) that the Union extending the application of by-law 13 to the nomination period as well as the election period means that "I cannot inform branches or other members that I am seeking nominations"; and
(9) that by reason of those matters among others:
"… the GMB made it impossible for lay members like me to become candidates in the election … by making it impossible to seek nominations in breach of … section 47."
- Those were the matters that supported his case that there had been a breach of section 47 of the 1992 Act so far as material to this appeal.
- In its amendment of 5 February 2016, to its response to the complaint, the Union said it no longer disputed the Appellant's proposition that by-law 13 did not apply to potential nominees, only to candidates. The Union did not make any explicit admission of having wrongly operated by-law 13 in the affair of the X58 branch circular newsletter, but it was implicit in the Union's changed position, and the allowing of the appeals of Mr Forrest and Ms Franco, that it accepted that it had done so.
- The Union submits that it did not need to do so because the Appellant was not complaining of that particular form of wrongdoing. I did not understand Mr Segal QC to submit that if the Appellant had complained of that particular form of wrongful interference with the election process, the Appellant would not have been entitled to a declaration that such wrongdoing was a contravention of section 47(1) of the 1992 Act.
- The question therefore comes down to whether the particular form of wrongdoing just discussed - effectively, using misinterpretation of a by-law improperly to repress the campaign of a potential candidate for election - was or was not part of the Appellant's case. It would be very odd if it were not. I have just cited passages from the Appellant's written complaint highlighting the emphasis he placed on that particular form of alleged wrongdoing.
- The Union's contention is that, despite those passages in his written complaint, the complaint of wrongful interference in the election process in the matter of branch X58, and by extension more widely as a deterrent against supporting the likes of the Appellant, was somehow withdrawn from his litany of complaints by means of his acquiescence in the formulation put to him by the CO's office. That would, if correct, be disturbing as it would mean that an unrepresented litigant had acceded to an invitation from the adjudicating body to drop his best points, including his key point, which had been implicitly conceded.
- It would also mean that once again the Appellant would not be getting an adjudication of the matters lying at the heart of his grievances against his Union; the very thing the CO's jurisdiction is there to guarantee. The appeal is framed as a challenge to the refusal of permission to make a late amendment, but at its heart lies the criticism that the CO did not determine the true issue between the parties: whether the Union's conduct in relation to Mr Henderson and his branch wrongfully interfered in the election process, in breach of section 47 of the 1992 Act.
- At paragraph 35 of his Decision the CO took, as the Appellant's case, the construction of by-law 13 which was the wrong interpretation the Union had initially adopted and then belatedly disavowed. That was not, however, the Appellant's case; it was the antithesis of his case. The CO read complaint 1 as excluding any complaint about the manner in which by-law 13 had been interpreted and operated, and only as complaining in the abstract about the content of the by-law as correctly interpreted. By that route, he found complaint 1 to be "misconceived".
- His was, with respect, an unduly technical and sterile reading of complaint 1. If it were read as including a complaint about the manner in which by-law 13 had been interpreted and operated, it was unanswerable and bound to succeed; but if it were read as excluding reference to the unlawful manner in which by-law 13 had been interpreted and operated, it was no more than an arid point, deprived of all its force by the fact that, as the Union belatedly accepted, it did not on its true construction prevent a potential nominee from contacting branches in writing as well as by telephone.
- I am in no doubt that the CO's reading of complaint 1 was wrong and did not do justice to the grievance the Appellant had brought to his table. The correct approach to complaint 1 is to read it sensibly and realistically in the light of the facts relied upon. These are found in the original complaint in October 2015 and in the witness statement of February 2016. When one reads it in that way, to make proper sense of it, it becomes clear that the complaint about being prevented from contacting branches, meant being prevented from contacting branches to inform them of an intention to seek nomination; and that the complaint embraced reliance on the factual matters regarding the manner in which by-law 13 had been interpreted and operated.
- Those included, against the background of Mr Kenny's circular of October 2014 - ungrounded in the rules as it was - the treatment of the Appellant's formal complaint to the Union and the treatment of the two branch officials - who are, after all, "other lay members" - words that appear in the wording of complaint 1. The Union had effectively, albeit tacitly, admitted that it acted wrongly in the matter of the suspension of the two branch officials and the condemnation of the circular newsletter that they were bold enough to send to their members.
- I ask myself why justice does not entitle the Appellant to a finding to that effect. He complained about it to the CO. It is conduct of a type that recognisably falls within the scope of section 47 and section 108A of the 1992 Act. I cannot see how justice does not entitle him to such a finding or that it was just to deprive him of it. Far from being "misconceived", the concession of the Union that it had misconstrued by-law 13 meant on a fair reading of the complaint before the CO that complaint 1 was bound to succeed.
- I come next to the first sentence at paragraph 37 of the Decision, which reads:
"The case now advanced in support of Mr Henderson addresses a different point to the one made in this complaint. …"
That, again, is based on a misreading of what the Appellant's real complaint is about. I reiterate: a major plank of it was that the Union had misinterpreted by-law 13 and had used that misinterpretation as a basis for wrongfully suspending the two branch officials pending a disciplinary hearing.
- Unfortunately, the CO overlooked the simple point that that complaint, which in large measure corresponds to complaint 1, was manifestly well founded on the Union's own case before him. It was common ground before the CO that Mr Warr, and before him Mr Hayes, had emailed Mr Forrest saying that the circular he proposed to send out breached by-law 13. It is now common ground that this was incorrect. The circular did not breach by-law 13.
- It therefore followed, as night follows day, that the Union, through Mr Hayes and Mr Warr, basing themselves on a misconstruction of by-law 13, had unlawfully interfered with and impeded the Appellant's efforts to secure sufficient nominations so as to become a candidate. The interference was made worse by the unjustified disciplinary process against the Appellant's branch secretary and president. The Appellant was entitled to a finding as a matter of elementary justice that the Union had unlawfully interfered in his campaign in breach of section 47 of the 1992 Act.
- The application to amend was unnecessary, since complaint 1, properly read in the context of the earlier narrative in the Appellant's application, already bore the meaning that the amendment would have reinforced but not altered. The Selkent issues are therefore rather beside the point. Mr Oxton should not have needed to make an unnecessary application to amend the complaint, so as to give it the meaning it already bore.
- But if one looks at the matter on the footing that the amendment was necessary, it was manifestly unfair and wrong not to grant it. It did no more than express what had been the Appellant's case all along. If (contrary to my judgment) it was lacking from complaint 1 as formulated, it was only fair and just that the deficiency should be made good. As Mr De Marco correctly submitted, it did not alter the true scope of the complaint nor raise any new points; it merely clarified the Appellant's case and correctly identified its true character.
- The CO's brief reasons for refusing to allow the amendment included reference to:
"3. … the absence of evidence which the Union may have wished to introduce if the case had been pleaded in this way in a timely manner."
He did not say what evidence he was referring to. I asked Mr Segal QC, who was there. He said that he had submitted to the CO that if the amending words sought had been present throughout, he would or might have wished to call evidence different from that on which he did rely, namely evidence that other potential nominees had no difficulty in contacting branches to let them know of their intention to seek nomination.
- In his written skeleton before me, Mr Segal QC pointed out that no evidence was called by either party:
"… to address the issue of whether GMB had at any material time believed, let alone had communicated such a belief, that by-law 13 prevented nominees from notifying branches that they were seeking nomination. …"
In the same skeleton, he added that his objection to the amendment included the proposition that:
"… the CO had no evidence enabling him to determine whether GMB had at any material time caused Mr Henderson to conclude that by-law 13 prevented nominees from notifying branches that they were seeking nomination (as opposed to preventing them from written canvassing for support)."
- In fact, the CO had the evidence of Mr Hayes' words in the email he sent to Mr Forrest on 23 July 2015, which, read together with the circular newsletter to which Mr Hayes referred, exposed the specious nature of the Union's distinction in the present context, between notifying branches of an intention to seek nomination, on the one hand, and written canvassing on the other. Furthermore, the Union had been on notice since October 2015 that the Appellant was complaining that he was:
"… prevented from contacting branches to inform them that they are seeking nominations and explaining why they wish to stand and what their manifesto would be" [My emphasis].
- The Union was also on notice from 20 February 2016, from the Appellant's witness statement, that (see paragraph 25) he relied on the point that removal from office of the two branch officials:
"25. … was also intended to impress upon other branches and their officers that dire consequences would follow if they were to support me [and that the treatment of the two branch Officials was an] intimidation tactic …"
- If the Union begged to differ, it could have called evidence, if it had any, that this was not so. The Union did not dispute that it had not only suspended the two branch officials, but had also written to all London Central General X58 branch members informing them of the suspension.
- It is not surprising that the Union did not decide to call evidence that other potential nominees contacted branches without difficulty and were permitted to inform the branches of their intention to seek nomination. Such evidence, if called, would only have pointed at the contrast between the treatment of the Appellant and his allies, and that of other persons.
- It would not have assisted the CO to determine whether the Union had done wrong to the Appellant for the Union to show that it had not done the same wrong to others in a similar positon. None of the above points are even mentioned, let alone evaluated, in the CO's three lines of reasons for refusing to allow the amendment.
- That brings me to Mr De Marco's separate "reasons" challenge. The statutory obligation under section 55(5) and 108B(2)(e) of the 1992 Act to "give reasons for his decision in writing", applies to a decision as to "whether he makes or refuses a declaration". It does not apply to a procedural decision whether to grant or refuse an amendment.
- Hence, Mr De Marco relied on well-known common law authority, most significantly: R v Higher Education Funding Council ex parte Institute of Dental Surgery  1 WLR 242, per Sedley J (as he then was) at 258B-E; R v Secretary of State for the Home Department ex parte Doody  1 AC 531, per Lord Mustill at 565G-H; and, in the context of Article 6 of the European Convention on Human Rights and Fundamental Freedoms, Foster v Musicians' Union D/13-17/03 at paragraph 40 and Helle v Finland  26 EHRR 159 at paragraph 55.
- Mr Segal QC contended that the reasons were obvious and did not need elaboration: the amendment was made too late, the evidence had all been called and, as the CO said, it would or might have been different if the amendment had been submitted earlier.
- The passages in the judgments relied on by Mr De Marco do not unequivocally support his proposition that the CO is obliged to give reasons for a procedural decision such as this. If the obligation to give reasons for such a decision exists at all, the reasons need not be discursive and elaborate. Without needing to decide the issue of whether they were required at all, I say only that I doubt in this case whether the reasons challenge on its own would have justified the intervention of this Appeal Tribunal.
- The difficulty with the reasoning in support of the decision to refuse the amendment is not so much that the reasons are inadequately set out as that they do not bear scrutiny, for the reasons I have already given. That said, and even if he is not obliged to do so, the CO would have done well, if only as a check against irrationality, to have explained (i) why the lateness of the application to amend mattered, when it added nothing of substance to the case made by the Appellant in writing the previous October; and (ii) what evidence from the Union the amendment, if made earlier, might have generated from and why that evidence, if called, would or might have made a difference.
- There is then a separate perversity challenge to the reasoning and conclusion at paragraph 37 of the CO's Decision. He had already decided that complaint 1 was "misconceived". However, he went on to address an alternative case, which, he said, "addresses a different point to the one made in this complaint". As I have already said, I consider he was wrong about that, but he nevertheless did go on to consider that case.
- In my judgment, he did not do so in a manner that properly addressed the Appellant's argument. The difficulty with the reasoning in paragraph 37 is that the CO had already mischaracterised the complaint in a manner that made it difficult for him to reason convincingly on the alternative footing that the complaint meant what he had decided it did not mean. It is therefore regrettable but not surprising to find that the reasoning in paragraph 37 is, with respect, unconvincing to the point of perversity.
- To brush aside as an irrelevance the Union's treatment of the Appellant's candidature and his branch officials, as the CO did, was to trivialise the Union's unlawful conduct. That conduct was not mitigated by the Appellant's omission to contact branches other than his own between 6 June 2015, when by-law 13 came into effect, and the later time when he discovered the timetable for the election, sometime in July 2015. Similarly, that the Appellant would be hampered in his efforts to contact branches by not having the necessary contact details was a matter relevant, if at all, to remedy. It did not excuse the wrongdoing of which he complained.
- Nor was it relevant that the Appellant had a history of hostile and at times litigious relations with the Union's leadership. The CO appeared to rely on this factor in support of his use of the adjective "disingenuous" to describe the Appellant's approach to the task of securing 30 nominations, but the Appellant's motives for complaining about his treatment by the Union were not on trial before the CO; the issue was whether the Union had acted wrongly, not whether the Appellant had.
- I accept that a complainant, who brings a case before the CO in bad faith or in circumstances amounting to an abuse of process, should expect the complaint to be given short shrift and dismissed, perhaps summarily. But this was not such a case. Here, the CO's reasoning at paragraph 37 amounts to something like the proposition that any unlawful conduct in the election process on the part of the Union toward the Appellant was of no consequence, because the Appellant was not serious about becoming a candidate for the office of General Secretary.
- The CO no doubt considered that his true motive for complaining to the CEC and subsequently the CO was to cause difficulty to the Union by reason of his hostility to its leadership. That was a matter that might be relevant to remedy but, short of abuse of process, is not relevant to the merits of the complaint, if it is shown that the Union complained against has acted unlawfully in breach of section 47 or section 108A of the 1992 Act. Unpopular fringe figures within the trade union movement have the same rights of complaint under the 1992 Act as anyone else.
- For the foregoing reasons, the CO's Decision was, in my judgment, flawed, and the appeal is well founded. The CO did not properly determine complaint 1. It does not follow, however, that the Appellant would have become a candidate had the Union not unlawfully interfered with his right to participate in the electoral process. He might well have failed to persuade sufficient other branches to nominate him, or even failed to find out how to contact them, whether in writing or by telephone. He could not look to full-time officials for contact details, as Mr Segal QC rightly pointed out.
- It is not known what would have happened if the Union had not sought to repress the Appellant's campaign. It might not have needed much repressing. The statistics at paragraph 20 of the CO's Decision suggest that, even without the Union's interference, he would have struggled to make sufficient headway to gain anywhere near the required 30 branch nominations. It is understandable that he would want to secure his own branch's nomination before approaching other branches, but other branches would be less likely to know him as well as his own and probably less likely to support him.
- With that in mind, I turn to the question of remedy. By section 35(1) of the 1996 Act, I may exercise any of the CO's powers, or remit the case to the CO. His powers include the power to make a declaration that the Union has failed to comply with the requirement at Chapter IV (here, the requirement of section 47(1)), which must specify the provision (by-law 13) with which the Union has failed to comply (see section 55(2) and (3) of the 1992 Act). I may also make a similar declaration of breach of rule under section 108A(1). I propose to make such a declaration.
- I do not see any purpose in remitting the case back to the CO. There was a plain breach of section 47(1). The Union acted "unreasonably" in excluding the Appellant as a candidate. The gravamen of the breach was not disputed. The essence of the breach was using a wrong interpretation of by-law 13 as a means of hampering the Appellant's ability to obtain nominations from his branch and potential nominations from other branches. It was also, in my judgment, a breach of the Union's rule (i.e. by-law 13) falling within section 108A(1) of the 1992 Act, relating to one of the matters in section 108A(2), namely "the appointment or election of a person to, or the removal of a person from, any office" (see section 108A(2)(a)).
- I am satisfied that by allowing the appeal of the two branch officials (provided that they have been restored to office, as I assume they have) and by making the concession that the Union's former interpretation of by-law 13 was wrong, the Union has taken "steps … with a view to remedying the declared failure" (see section 55(4)). I therefore propose to specify those steps in my declaration pursuant to that provision.
- I am invited by Mr De Marco, though he did not press the point very hard, to direct that the result of the election that took place in 2015 should be set aside and that the election should be re-run. I do not accede to that invitation. The result of the election was announced as long ago as November 2015. It is unlikely, on such evidence as I have, that the Appellant would have achieved the required 30 nominations so as to become a candidate.
- It is true that nominations short of 30 that he might have achieved, have probably have gone to other candidates, but I think it would be contrary to the interests of good trade union governance to annul the election at this late stage. Nor do I see a need to make any other kind of enforcement order. A declaration and this Judgment is enough to meet the justice of the Appellant's case.
- In conclusion, I would:
(1) set aside the CO's Decision;
(2) make a declaration under section 55(2) of breach of section 47(1) and under section 108B(2) of breach of rule;
(3) include in the declaration the steps that the Union has taken to remedy its failure, and
(4) refuse to order that the result of the election be set aside and the election re-run.
Published: 28/04/2017 11:53