UNISON v Kelly & Ors

A trade union member is protected from unjustifiable discipline for a good-faith assertion that the union or its officials have breached union rules or the law. The protection in section 65(2)(c) of the Trade Union and Labour Relations (Consolidation) Act 1992 is compatible with Article 11 of the Convention. It protects members’ ability to hold a union to account and, if it interferes with union autonomy, is justified as necessary in a democratic society.

Under section 65(5), the union must show that the member would have received the discipline actually imposed irrespective of the protected assertion. Section 65(6) requires both falsity and knowledge of falsity or bad faith. A finding of genuine belief and good faith therefore makes it unnecessary to determine whether the assertion was objectively true.

Four UNISON members were disciplined after distributing a conference leaflet which alleged that the union’s Standing Orders Committee had excluded motions because they were controversial. The leaflet’s cartoon caused unintended racial offence. The members were barred from holding union office for periods between three and five years.

On 27 January 2011, the London Central Employment Tribunal held that they had been unjustifiably disciplined contrary to section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992. UNISON appealed. It contended that the statutory regime was incompatible with Article 11, that an earlier discrimination claim created an issue estoppel, and that the Tribunal had misapplied sections 65(5) and 65(6).

The central issue was whether the sanctions were imposed because of a protected good-faith allegation of breach of union rules, rather than independently punishable conduct.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the respondents had been unjustifiably disciplined contrary to section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992.

2. Section 65(2)(c), which protects a member who asserts that the union has breached its rules or the law, did not violate Article 11(1) of the European Convention on Human Rights. It is materially different from statutory restrictions on a union’s ability to determine membership and expulsion. It protects members against maladministration and enables them, acting in good faith, to hold their union to account. If it did interfere with Article 11(1), the interference was justified under Article 11(2) as necessary in a democratic society for the protection of members’ rights and freedoms. [2007] IRLR 361 and [2011] IRLR 394 did not govern that issue.

3. No issue estoppel arose from the earlier proceedings. The earlier Tribunal considered whether the decision to investigate was made because of the respondents’ political beliefs. The present proceedings concerned the outcome of that investigation and whether the bans from office were imposed because the respondents had asserted a breach of union rules. These were different issues concerning different decisions and conduct.

4. The words “would be disciplined” in section 65(5) mean that the member would have been disciplined as they were in fact disciplined. The provision permits discipline for independently punishable conduct, such as causing racial offence, but it did not assist UNISON where the Tribunal was entitled to find that the lengthy bans would not have been imposed without the allegation against the Standing Orders Committee. That conclusion was not perverse.

5. Section 65(6) requires proof both that the assertion was false and that it was made in the belief that it was false or otherwise in bad faith. Having found that the respondents genuinely believed their assertion and made it in good faith, the Tribunal was entitled not to decide whether it was objectively true or false.

• Employment Appeal Tribunal: UNISON’s appeal was dismissed: [2012] UKEAT 0188_11_2202.
• Employment Tribunal, London Central: On 27 January 2011, held that the respondents had been unjustifiably disciplined contrary to section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992.