Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 zd THE EMPLOYMENT TRIBUNALS BETWEEN Claimants : AND Respondents Mr G Kelly Unison MrO Kasab Mr B Debus, Ms S Muna JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT: London Central ON: 20, 21, 22, 24, 27, 28 September 2010 29 October 2010 4, 5 & 12 November 2010 in chambers EMPLOYMENT JUDGE: Ms H Grewal MEMBERS: Ms S Samek Mrs A D Hills Appearances For Claimants: Mr Kelly For Respondent: Mr D Panesar of Counsel JUDGMENT The unanimous judgment of the Tribunal is that all the Claimants were unjustifiably disciplined, contrary to section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992. f-Greu JUDGE JUDGMENT SIGNED BY EMPLOYMENT JUDGE ONCase Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 REASONS OF THE EMPLOYMENT TRIBUNAL 1 ___In a Claim Form presented on 30 September 2009 the Claimants complained that they had been unjustifiably disciplined by the Respondent contrary to section 65 of thé Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), when they were banned from holding office. Mr Kelly and Mr Kasab were banned from holding office for three years, Ms Muna for four years and Mr Debus for five years. The Respondent in its response denied that the Claimants had been Subjected to unjustifiable discipline, The Issues 2 The issues that we had to determine were identified and clarified at a Case Management Discussion on 3 February 2010 and again at the outset of the Hearing. It was agreed that the issues that we had to determine were as follows: 2.1 Whether the conduct for which the Claimants were disciplined fell within section 85(2)(1)(c) of TULR(C)A 1992, in other words, was the reason, or one of the reasons, that the Claimants were banned from holding office on 23 July 2009 that they had asserted that the union or any official or representative of it had contravened a requirement which was or was thought to be imposed by or under the rules of the union or any rule of law. 2.2 Whether the Respondent had shown that the act in respect of which the Claimants were disciplined was one in respect of which they would have been disciplined irrespective of whether it was in connection with conduct falling within section 65(2) (section 65(5) of TULR(C)A 1992). 2.3 Whether the Respondent had shown that the Claimants’ assertion that the Standing Orders Committee had contravened the rules of the union by rejecting motions that were controversial was false, and hat they made it believing that it was false or otherwise in bad faith (Section 65(6) TULR(C)A 1992). 24 Whether Article 11 of the European Convention of Human Rights precluded the Tribunal from concluding that the Respondent's actions were in breach of TULR(C)A 1992 and unlawful. Furthermore, whether in order for section 65 to be compliant with Article 11 of the European Convention of Human Rights the following words had to be added into section 65(5) — “Further this section does not apply to any act, omission or statement which Is contrary to the union's rules and/or fundamental ideals, goals and values or where it would be reasonable for the union to discipline the person in question.” he Law 3 Section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULR(C)A 1992") provides that an individual who is a member of a tradeCase Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 union has the right not to be unjustifiably disciplined by the union. An individual is “disciplined” by a trade union if a determination is made under the rules of the union or by officials of the union that he should be deprived to any extent of, or any access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union or that he should be subjected to some other detriment (section 64(2)(d) and (f)). 4 Section 65(1) TUL(C)RA 1992 provides, “An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason or one of the reasons for disciplining him is — (a) conduct to which this section applies, or (b) something which is believed by the union to amount to such conduct; but subject to subsection (6) (cases of bad faith in relation to assertion of wrongdoing.” Section 65(2) provides that the section applies, among other things, to conduct which consists of asserting that the union or any official or representative of it has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the union (section 65(2)(c)). Section 65(5) provides that this section does not apply to an act, omission or statement comprised in conduct falling within subsection (2) above if it is shown that the act, omission or statement is one in respect of which individuals would be disciplined by the union irrespective of whether their acts, omissions or statements were in connection with conduct falling within subsection (2) above. Section 65(6) provides that an individual is not unjustifiably disciplined if it is shown that the assertion was false and that he made the assertion in the belief that it was false or otherwise in bad faith. 5 We were referred to the case of UNIFI v Massey [EAT/0223/04]. In that case the EAT accepted that in order to fall within 65(2)(c) TULR(C)A 1992 there did not have to be an express statement by the member that anyone was acting in breach of the union rules. It was sufficient that such an assertion could be inferred from, or was implicit in, what was said and that the union believed that that was what the member was alleging. In that particular case, a member standing for election for trustees of the union's pension fund, urged those voting in the election to look beyond the “preferred” candidates and to vote for an independent trustee. The Tribunal had concluded that the reason that she was disciplined was that the union believed that her statement amounted to an assertion that the “preferred” candidates (who were members and office holders of the union and endorsed by the union) proposed to contravene a rule of law, namely the duty of a trustee to act independently. 6 Section 3 of the Human Rights Act 1998 (‘HRA 1998") provides that so far as it is possible to do so primary and subordinate legislation must be read and given effect in a way which is compatible with the rights set out in the European Convention of Human Rights (‘the Convention rights"). However, that section does not affect theCase Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 validity, continuing operation or enforcement of any incompatible primary legislation. Section 6 HRA 1998 makes it unlawful for a tribunal to act in a way which ig incompatible with a Convention right. However, a tribunal does not act unlawfully if either as a result of the provisions of primary legislation it could not have acted differently or the provisions could not be read or given effect in a way which is compatible with the Convention rights. Section 2 HRA 1998 provides that in determining a question which has arisen in connection with a Convention right, the tribunal must take into account any judgment, decision or advisory opinion of the European Court of Human Rights. 7 Article 11 of the European Convention of Human Rights provides, “1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others including the right to form and to join trade unions for the protection of his interests. 2, XO restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interest of national security or public Safety, for the prevention of disorder orcrime, for the protection of health or morals or for the protection of the rights and freedoms of others ...” 8 _In ASLEF v United Kins [2007] IRLR 361 the European Court of Human Rights held that section 174 TULR(C)A 1992 which prohibits the exclusion or expulsion of an individual from a trade union by reason of him being a member of a Particular political party violated the right to freedom of association and to form and Join trade unions under Article 11. The ECHR held that just as a worker should be free to join, or not join, a trade union without being sanctioned or subject to disincentives, so should the trade union be equally free to choose its members. Article 11 could not be interpreted as imposing an obligation on associations oy Organisations to admit whosoever wished to join. The right to join a union “for the Protection of his interests” cannot be interpreted as conferring a general right to join the union of one’s choice irrespective of the rules of the union. In the exercise of thelr rights under Article 11(1) unions must remain free to decide, in accordance with the union rules, questions concerning admission to and expulsion from the union. Where the State intervened in internal trade union matters, such intervention had to comply with the Tequirements of Article 11(2), namely it must be “prescribed by law” and “necessary in a democratic society” for one or more of the permitted aims. Issue Estoppel 9 It was argued on behalf of the Respondent that this Tribunal was not entitled to make findings on a number of facts which had been decided by a previous Tribunal ‘on the basis that issue estoppel applied, The Issues in the previous case 10 In a previous case brought by the same four Claimants against the Respondent they had complained in claim forms presented on 24 November 2008 that between 3Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 June 2007 and November 2008 they had been subjected to direct discrimination and harassment on the grounds of their Philosophical belief, contrary to Requlations 3(Nla),_5(1) and 15(2) and (3) of the Employment Equality (Religion or Bs lief) Begulations 2003. ‘In a judgment Promulgated on 28 January 2010 the Employment Tribunal dismissed their claims on the grounds that it had no jurisdiction to hear them. 11 The Tribunal in that case had identified the issues it had to determine as being the following: 11.1 Whether Marxist/Trotskyite beliefs and membership of the Socialist Party constituted a “philosophical belief” within Regulation 2(1)(b) of the 2003 Regulations; 11.2 Whether there was Jurisdiction to hear the complaints having regard to the time limits for bringing such complaints; 11.3 Whether in respect of a number of actions taken by the Respondent against the Claimants in relation to the leaflet, which is also the subject matter of this claim, the Respondent treated the Claimants less favourably than actual or hypothetical comparators. The actions took place between June 2007 and November 2008 and included the launch of a disciplinary investigation, the initiating of a Rule | inquiry and the holding of a disciplinary hearing. 114 Whether the following were appropriate comparators within the meaning of Section 3(3) of the 2003 Regulations i.e. whether the relevant circumstances in their cases were the same as or not materially different from those of the Claimants: (c) Branch officials and delegates of the four branches identified with the leaflets who did not share the Claimants’ beliefs. (d) The Respondent's East Midlands Regional Women's Committee which criticised the decisions of the Standing Orders Committee. (e) Geoff Martin who in 2003 wrote an article which condemned ‘supporters of the Labour Link as liars and refer to their argument as “total bollocks", (f) A delegate who referred to ethnic minority people as “coloured People” which Ms Miller described as offensive and Possibly racist. (9) NEC member Bob Oram who made remarks about wishing Mrs Thatcher dead at the 2009 Conference. (h) The South East Region Disabled Members Group who used the image of the three wise monkeys but against whom no action was taken,Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 11.5 _ If they were appropriate comparators and the Claimants were treated less favourably than them, whether it was on the grounds of their philosophical belief as defined by them. 12 The Tribunal in that case concluded that Marxist/Trotskyite beliefs and membership of the Socialist Party did not constitute a “philosophical belief” within Regulation 2(1)(b) of the 2003 Regulations and that many of the complaints had not been presented in time. Therefore, the Tribunal had no jurisdiction to hear their claims and dismissed the claims. 13 The Tribunal nevertheless went on to consider the substantive issues in case it ‘was wrong in its decision on the questions of jurisdiction. It concluded that in respect of the initial investigations that Claimants had not proved a prima facie case of discrimination because they were treated in the same way as a Mathew Waterfall, who was not a member of the Socialist Party and was known not to share the beliefs of the Claimants, It concluded that of all the comparators upon whom the Claimants relied Mr Waterfall was the only appropriate comparator. The other officials and delegates of the four branches were not appropriate comparators because nothing was known about their political beliefs. The other comparators were not appropriate because the relevant circumstances of their cases were not the same as those of the Claimants. The Tribunal concluded that by recommending that there be a disciplinary hearing against the Claimants they had been treated less favourably than Mr Waterfall and had proved a prima facie case of discrimination and the burden shifted to the Respondent. The Tribunal accepted the Respondent's explanation that the reason for the difference in treatment was that at the conclusion of his second interview Mr Waterfall apologised for the unintended racist offence and said that he would not repeat the leaflet, and that it was not the Claimants’ philosophical beliefs. Issue estoppel — the law 14 Issue estoppel is a form of res judicata which prevents a party reopening an issue which has been decided in earlier proceedings involving the same parties. In the case of Thoday v Thoday [1964] 1 All ER 341, at 352 Diplock LJ explained the concept of issue estoppel as follows. Where a tribunal has reached a conclusion about the fulfilment of a condition that is necessary to prove a cause, neither party can, in subsequent litigation of a different cause that requires a fulfilment of the same condition, assert that the condition was fulfilled if the tribunal in the first cause determined that it was not or deny that it was fulfilled if the tribunal in the first cause determined that it was. However, the determination by a tribunal of the existence or non-existence of a fact, the existence of which is not of itself a condition that has to be fulfilled to prove the cause but is only relevant to proving the fulfilment of such a condition, does not estop either party in subsequent litigation from asserting the existence or non-existence of the same fact contrary to the determination of the first Tribunal. It may not always be easy to draw the line between facts which give rise to issue estoppel and those which do not but the distinction is important. lication of issue estoppel to the present cas 15 It is clear that there is a link between the previous Tribunal case between the same parties and the case before us. Both relate to the same leaflet and theCase Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 involvement of the Claimants in its production and distribution. However, the issues in the two cases (set out above) are very different. In summary, the issue in the Previous case was whether the action taken up to the conclusion of the disciplinary hearing had been taken on the grounds that the Claimants had MarxistTrotskyite beliefs and were members of the Socialist Party. The issue in the case before us was whether the Claimants had been banned from holding office for periods of three to five years because they had asserted that the Standing Orders Committee had been acting in breach of the union rules or because of the manner in which they had done it, The two cases deal with different periods of time and different decisions made by different individuals. Different witnesses gave evidence in the two cases. The witnesses in the previous case were the Claimants, L Walsh (Editor of Socialism Today), T Snow (Regional Organiser, Unison) and Mathew Waterfall on behalf of the Claimants, and Linda Perks, John Freeman, Beverly Miller and Kevan Nelson on behalf of the Respondents. We accept that we are estopped from deciding and reaching any different conclusions on the issues that were determined by the Previous Tribunal. We do not, however, accept that we are bound by every finding of fact made by that Tribunal. It is for us, having heard all the evidence, to make the findings fact that we think are relevant to the issues that we have to determine. The Evidence 16 The Claimants gave evidence in support of their claims. The following witnesses gave evidence on behalf of the Respondent — Linda Perks, Clytus Williams, Kevan Nelson and Annette Mansell-Green, who chaired the disciplinary Panel that banned the Claimants from holding office. We also had before us three lever-arch files of documents. Having considered all the oral and documentary evidence and the submissions of both parties, the tribunal's findings of fact are as follows. Findings of fact 17 The Respondent is the Uk’s largest public services trade union with more then 1.3 million members. It is governed by its Rule Book which, amongst other things, Sets out its aims and objectives, defines its structure and membership and policy making process and the obligations of members. In order to ensure union democracy, its aims and objectives include “to promote and establish a member-led union and to carry out and fulfil decisions made by members in a spirit of unity and accountability” and “to promote and safeguard the right of members to have an adequate opportunity to participate in the initiation and development of policy making, through meetings, conferences, delegations or ballots, and to encourage the maximum democratic debate, together with the right to campaign to change policy, while at all times acting within the rules and agreed policy.” (Rule B2.2 and 2.5) 18 Rule B4.6 of its Aims and Objectives provides “to seek to ensure that members, activists, representatives and staff are treated with dignity and respect at all times when participating in the union's democratic structures.” 19 Each member of Unison belongs to a local branch which is made up of fellow employees of the same employer. Each branch is run by an elected committee and the Branch Secretary, in conjunction with the Branch Committee, is responsible forCase Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 ensuring that the branch observes the Union Rules. Branches belong to one of 12 Regions. Each Region has a Regional Council made up of delegates elected from the branches. There are also nationally elected or appointed officers such as the General Secretary and the Deputy General Secretary. The supreme government of the union is vested in the National Delegates Conference which meets annually and decides the campaigning priorities and policies of the union, Each branch is Permitted to send a certain number of delegates to the Conference. The delegates are elected by the branch and vote at the Conference on behalf their branch members. The general management and control of the union between National Delegates Conferences is vested in the National Executive Committee (“NEC”), which comprises representatives elected from the regions and service groups plus four black members and a young member. 20 Prior to the National Delegates Conference each branch is entitled to ‘submit motions to be voted upon at the Conference. The Standing Orders Committee (‘SOC’), which comprises one representative from each of the 12 Regional Councils and three members of the NEC, considers all the motions submitted and rejects those which have not been submitted in accordance with the Rules (Rule P2.3.4.1). At the start of the Conference the Chairperson of the SOC announces the Committee's decisions on the motions submitted and these have to be ratified by Conference (Rule P2.4). At this stage members can ask for a vote to have any motion that has been ruled out of order referred back to the SOC for further consideration. Although the Chairperson of the SOC is elected annually, the same person, Clytus Williams, has been the chairperson since 1997. Mr Williams is black. The other 14 members of the SOC at the relevant time were white. 21 !n 2007 Glen Kelly was the branch secretary of the Bromley Local Government branch and had held that position since 1990. He had also held various senior elected positions in the London region. Since 2005 he had also been an elected member of the National Executive Council. Brian Debus has been a member of the Hackney branch since 1995. From 2002 to 2005 he was branch secretary and in 2006 he was elected branch chair, a position which he still held in 2007. Suzanne Muna worked for a housing corporation (now known as the Tenants Services Authority) and had been an elected representative for her work place since November 2001. In 2007 she was also the branch secretary and staff side secretary. In 2007 Onay Kasab was the branch secretary of the Greenwich Local Government branch, a position which he had held since 1997. 22 __ Prior to each National Delegate Conference the Standing Orders Committee sends to alll branches guidance on submitting motions to the Conference, and it did So in early 2007. The 2007 guidance stated, among other things, the following - all motions and amendments for the National Delegate Conference had to be relevant to the union as a whole rather then a Service Group (Rule D.1.10.2); any motion in relation to industrial action must not contravene Rule O (which provides that only the NEC or the General Secretary on behalf of the NEC shall have the power to authorise strike or other industrial action) or Rule B.4.5 which sets out one of the union's aims and objectives as being to perform such other duties and engage in such other business as a trade union may lawfully undertake); the SOC had been advised by lawyers not to allow any motions relating to equal pay on the agenda as anything said at the Conference could be obtained and used by lawyers representing membersCase Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 pursuing equal pay claims against the union; motions dealing with staffing matters would be considered on their merits bearing in mind that the NEC and the General Secretary had responsibilities for the employment and terms and conditions of staff. Rule D.2.10 provides that the NEC or the General Secretary has the power to engage or dismiss staff, and that the NEC shall determine the pay and conditions of service of staff. 23 __The branches submit their motions before the Conference and if motions are rejected the SOC writes to the branch and gives a one line reason for ruling the motion out of order. The branch has the opportunity if it does not agree with the decision to make further representations in writing. If the SOC does not change its decision, the delegates from the branch who attend the Conference can meet with the SOC and try to persuade it to change its decision. 23 _ In 2007 the Bromley branch, of which Mr Kelly was the branch secretary, submitied two motions. The first related to the election of union officials and the motion was that the conference instructed the NEC to prepare a report for the 2008 conference with appropriate rules changes which would enable the election of the Deputy General Secretary, Heads of Service and the Regional Secretaries. The second one related to organising ballots for industrial action and the motion was that conference instructed the NEC to produce new guidelines/procedures and appropriate training which would give branches the right to initiate a strike ballot without the need to seek approval elsewhere. It continued that this would not change the existing procedures or rules for the authorising of official strike action. 24 _ The motion relating to the election of union officials was ruled out of order on the ground that it was in breach of rule D.2.10 which dealt with employment of staff. The Bromley branch made further written representations but the SOC reconfirmed its original decision. Mr Kelly wrote to the SOC that that the branch would wish to challenge the decision and would like the opportunity to meet with the SOC at conference. Mr Kelly believed that the motion was not in breach of Rule D.2.10 because it was not asking for Conference to make any employment decision about those employed by the Union but was asking for a discussion on whether certain Positions in the union should be occupied by those who had been elected rather than those who had been appointed. It was a discussion about a principle and not about the employment status of any individuals. The second motion in respect of initiating strike ballots was also ruled out of order, the reason being that it could place the union in legal jeopardy. That decision again was challenged in writing but to no avail. Mr Kelly did not understand how his branch's motion could place the union in legal jeopardy. It was not saying that the union should not control and oversee the conduct of the ballot (in respect of which there are strict legal requirements failure to comply with which can have with serious consequences for the union) but simply that the decision to initiate a ballot could be taken at the branch level thus avoiding delays which often had the effect of rendering any action ineffective. 25 The Greenwich branch, of which Mr Kasab was the branch secretary, had three motions rejected. The first motion was that Conference reaffirmed the union's Position of arguing for full year status and opposing term time only working in schools, congratulated nursery nurses in Greenwich for their campaign to win their regrading claim and opposing a deal based on term time working and condemned theCase Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 Union's regional officials in London for long delays in authorising industrial action and called upon regional officials and the Industrial Action Committee to ensure timely support for union members in taking action in line with Unison policy. That motion was ruled as being out of order on the ground that it was in breach of rule D.2.10. The Greenwich branch made further representations and the SOC reconsidered it and reaffirmed its decision not only on the ground that it was in breach of rule D.2.10 but also that it was contrary to rule O. Mr Kasab, for similar reasons to those expressed by Mr Kelly, did not agree that the motion was in breach of either rule. 26 The second motion by the Greenwich branch was that Conference agreed that (a) a full time official's role was to serve members and not to frustrate the wishes of the membership and (b) such officials must not use their role to block decisions democratically arrived at by members and which were in line with the rules, aims and objectives of the union. This motion was ruled out of order on the ground that it was a statement and not a motion. The third motion called upon conference to agree that an urgent reappraisal of the union's strategy in respect of singe status was necessary and that there was an urgent need to link up branches in dispute with employers about single status in a nationally coordinated campaign involving joint strike action. This was ruled as being out of order on the ground that it could place the union in legal jeopardy if discussed. 27 The Housing Corporation, of which Ms Muna was the branch secretary, had one motion rejected. This motion also concerned the delays in processing requests to hold strike ballots and was that Conference called upon the NEC to produce for the conference the following year statistical data on the processing times and results of workplace activists’ ballot requests and a set of recommendations which would reduce the bureaucracy and the time taken to process ballot requests and replace as much as possible the decision-making by unelected officials with decision-making by bodies of workplace representatives, The motion concluded that it recognised that any steps taken could not jeopardise Unison’s legal position. The motion was ruled out of order on the ground that it conflicted with an existing rule, but did not specify which rule. Ms Muna sought clarification and was informed that it was in conflict with Rule O. She appealed against the decision and set out detailed reasons for her belief that it did not conflict with Rule O. The response was that SOC had reaffirmed its decision to rule the motion out of order as it conflicted with Rules 0.1, 0.2, 0.3 and 0.4. Ms Muna asked to meet with the SOC and the meeting was booked for Tuesday 19 June. 28 The Hackney branch, of which Mr Debus was the chairman and Matthew Waterfall was the branch secretary, had two motions that were ruled out of order. The first was that Conference believed that certain officials of the union should be elected (rather than appointed) and called on the NEC to bring forward proposals and Necessary rule changes to the 2008 Conference to facilitate the democratisation of the union. The second again concerned the delay in sanctioning the holding of ballots for strike action and called upon the Industrial Action Committee to write up a guidance note to be issued to all branches and regional offices to speed up the Process to allow members to take action in good time to defend or advance their Conditions of employment. Both motions were initially ruled out of order on theCase Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 ground that they had not been agreed at a quorate meeting. It was then made clear to the SOC that that was not correct and that they had been passed at a quorate meeting. The SOC then considered the content of the motions and, having done so, tuled them out of order on the grounds that they were in breach of Rules D.2.10 and °. 29 Prior to the 2007 National Delegate Conference 229 motions and amendments were submitted to the preliminary agenda. 55 motions and 13 amendments to rules were ruled out of order by the SOC. These were submitted by 46 branches out of a total of 1200, and 7 of the motions ruled out of order were from the four branches represented by the Claimants. 30 At a branch meeting of the Hackney Local Government Branch on 16 May 2007 it was agreed to seek the reinstatement of the motions back onto the 2007 Conference agenda and to campaign to do so. The branch committees of the other three branches had also agreed to campaign on the issues raised in their motions and to try and get the matters raised at the Conference. 31 ‘Sometime in late May 2007 the four Claimants attended the London Regional Local Government Conference. In the course of conversation, they discussed the motions that had been submitted by their respective branches and been ruled out of order. They did not accept that their motions had been in breach of the union rules and felt that they had been rejected because the SOC and the union did not want there to be a debate on certain issues. They discussed producing some kind of a leaflet to campaign for the motions to be put back on to the National Delegate Conference Agenda. The discussion was in general terms and did not deal with the ‘specifics of what would be on the leaflet. It is not uncommon for groups that want to campaign on issues at the National Delegate Conference to produce and distribute leaflets. 32 Following this discussion Ms Muna, who is a cartoonist, designed a leaflet. The leaflet is an A4 document and bears a Unison logo on the top left corner. There appears at the top of the leaflet a cartoon, drawn by Ms Muna, depicting three monkeys, one of whom is covering its ears, another its eyes and the third its mouth. It is obvious to anyone looking at the cartoon that it is meant to represent the well- known image of the three wise monkeys who see no evil, hear no evil and speak no evil. The words “Standing Orders Committee” are written immediately below the cartoon. There is then the headline “Whose conference’. The following text appears below the headline: * ‘This year the Standing Orders Committee (SOC) rejected an unprecedented 60+ motions submitted by branches representing nearly 1/3rd of all motions submitted. * The motions covered important and controversial issues such as ‘organising industrial action, the election of union officials and New Labour's attacks on public services. * At appeal against rejections, as soon as one SOC objection was effectively rebutted, another was immediately introduced. 10Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 * Were these motions rejected because they were controversial? Our Conference has a right to discuss union democracy and member controls of a fund, disputes and branch support structures” The words “Let Branches decide” are set out in a large bold font in the bottom one third of the leaflet on the left, and on the right there is a picture of three hands holding up ballot papers containing the words “Union Democracy’, “Election of Officials’ and “Our Motions” with a ‘x" after each one. It states at the bottom of the leaflet “Vote to return these motions to the agenda’ and “Supported by Housing Corporation Branch, Hackney LG, Greenwich LG, and Bromley LG”. 33 On 8 June 2007 Ms Muna circulated the leaflet by email it to all members of the Housing Corporation's branch committee. It was sent to 10 individuals and included Caroline Conroy, the Equalities and Diversities Officer. Her colleagues suggested some minor changes but none of them advised her that the image was in any way inappropriate or that it could in any way be construed as being racially offensive. 34 __At about the same time Ms Muna also sent the leaflet to Brian Debus. Mr Debus circulated it to his branch committee and to the individuals who were to attend the Conference and sought their agreement to distribute the leaflet at Conference. He said that it had been drafted in conjunction with the Housing Corporations Branch. He circulated it to about 21 individuals and these included Mathew Waterfall (Branch Secretary) and Kathy Hamilton and Shirley Glasgow, both of whom are black and attended the Conference. Both of them subsequently attended the Conference and helped to distribute the leaflet. At no stage did any of the recipients of the leaflet indicate to Mr Debus that it was in any way inappropriate or that it could be construed as being racially offensive. 35 Mr Debus also circulated the leaflet to about 20 other individuals, including Mr Kasab and Mr Kelly, in 12 other branches, asking them if their branches would like to be included as a supporting branch. None of the individuals responded. No one indicated to Mr Debus that the leaflet should not be used as it could cause racial offence. Mr Debus telephoned Mr Kelly and Mr Kasab and they both agreed to have the names of their branches included on the leaflet. Mr Kasab had not seen the leaflet and Mr Debus read the text out to him; Mr Kelly had seen the text but not the cartoon. 36 _ All four Claimants are committed anti-racists and have fought against racism. They quite reasonably assumed that anyone who saw the leaflet would understand the cartoon to be saying that the SOC was out of touch and closing its mind to and ignoring issues that concerned the membership. The cartoon was not a pictorial depiction of the members of the SOC (of whom there are a 15) but a representation Of its attitude towards motions that were submitted to it. It never occurred to them that anyone would take it out of context and consider it to be racially offensive because one member of the SOC, the Chairman, was a black man. Such a Possibility was never raised with them by any of the individuals who saw the leaflet. 1"Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 37 _The National Delegate Conference in 2007 took place between Tuesday 19 June and Friday 22 June. It was preceded by the National Local Government Conference that took place on the Sunday and Monday, 17 and 18 June. The Claimants printed about 1500 copies of the leaflet and these were distributed from Sunday onwards. Among those who distributed the leaflet were Shirley Glasgow and Kathy Hamilton, both of whom were black. 38 __On the evening of 18 June 2007 Malcolm Cantello, the President of Unison and Chairman of the National Delegate Conference, told Kevan Nelson, Head of Democratic Services, that he had received some complaints from branches about a leaflet which had been distributed. He told him that he leaflet contained a drawing of three monkeys and depicted the SOC as “see no evil, hear no evil, speak no evil". Mr Cantello asked Mr Nelson to arrange an investigation into the leaflet. According to Mr Nelson's evidence, he did not say to him that he had received complaints that the leaflet was racially offensive. The same evening Mr Nelson asked Linda Perks, Regional Secretary of the Greater London Region, to investigate the provenance of the leaflet. 39 ___We do not accept Mr Williams’ evidence (in his witness statement) that he raised concerns about the leaflet with Mr Cantello on the evening of 18 June 2007 because he had found the leaflet offensive and it had caused racial offence to him and other black members. His evidence about when he first saw the leaflet was inconsistent and not credible. In the course of his evidence he was asked by the Tribunal when he had first seen the leaflet. His response was that the SOC had seen it first thing on Tuesday morning. It was made clear that the question was about when he personally had first seen it and he replied that he first saw it on the Tuesday Morning. He later said that he had found out about it on the Monday when Mr Cantello had brought it to his attention. He then said that he first saw it on Monday night when Mr Cantello showed it to him. He also said in his evidence that a member of the SOC had brought the leaflet in on Tuesday morning and that it was there on a table in the room. Mr Nelson in his evidence did not say anything about Mr Cantello informing him that Mr Williams had raised concerns. He referred to complaints from branches. We find that Mr Williams did not raise any concems about the leaflet with Mr Cantelio on the Monday evening and that the first time he saw it was on the Tuesday morning at the meeting of the SOC. 40 __On the evening of 18 June letters were drafted to be given to the branch secretaries of the four branches whose names appeared on the leaflet. The letter said that Unison considered the document to be offensive, contrary to Unison's aims and values as set out at Rule B and in breach of the guidelines for Conference delegates set out at paragraph 4.15 of the Unison Conference guide. Paragraph 4.15 Provides that all delegates are expected to behave in a courteous manner and that aggressive, offensive or intimidatory language or behaviour will not be tolerated. Each branch secretary was asked to inform Ms Perks by 10.30 the following morning which member of the branch was responsible for the Production and distribution of the leaflet. 41 At about 9.30 on the morning of 19 June Ms Perks interviewed each of the branch secretaries - Messrs Kelly, Kasab and Waterfall and Ms Muna - and gave them the letter. Mr Kelly confirmed that he had authorised the production of the 12Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 leaflet on behalf of his branch and that nobody else in the branch had been involved. He had not seen the artwork prior to it being printed or distributed but having seen it at the Conference he did not see anything offensive in the leaflet. He had not been involved in the distribution of the leaflet at Conference. Mr Kasab confirmed that he had authorised support of the leaflet on the behalf of his branch having discussed it with some members of the branch committee. He had not had sight of the leaflet prior to the Conference but could not see anything wrong with it. He confirmed that neither he nor anybody in his branch had been involved in the distribution of the leaflet. Ms Muna confirmed that her branch executive had authorised production of the leaflet at ‘a meeting. She believed that the text of the leaflet was factually correct and it was not in conflict with the union rules. She confirmed that she had produced a cartoon. Mathew Waterfall confirmed that he had seen the leaflet and did not believe it to be offensive and he had agreed that his branch would support it. The decision to support the leaflet had been taken by senior branch officers, including himself and Brian Debus, but not by a full branch committee. The branch had been extremely unhappy with the decisions taken by the SOC. 42 Following the interview with Mr Waterfall, Mr Debus was also seen. He confirmed that the branch delegation had taken the decision to support the leaflet and it had been discussed with the Branch Committee. The whole leaflet, including the artwork, had been circulated to all members of the Branch Committee and to a number of other branches. 43 Shortly after the Conference formally began on 19 June Bev Miller, Chair of the National Black Members’ Committee, said that she wanted to raise a point of order. The union's rules provide that a delegate may at any stage in the Conference raise a point of order if he or she considers that business is not being conducted in accordance with the union's rules and standing orders. Ms Miller said that three branches had thought it witty to use monkey caricatures to poke fun at the Standing Orders Committee. She continued that the Chair of the Standing Orders Committee was proud black man and that to him and to her the joke was not funny. It belonged in the past with Bernard Manning. Black members and all other decent anti-racist trade unionist who understand the historic and racist denigration of black people did Not find the joke funny and that the leaflet was offensive and racist. She wanted to know what action the NEC proposed to take. 44 Mr Cantello responded that he had received a number of complaints that the leaflet attacked the Standing Orders Committee and constituted offensive material and as such was contrary to the union's aims and values and to paragraph 4.15 of the Guide to the Conference procedure. He said that he had authorised an investigation with immediate effect. 45 Mr Williams then reported as Chair of the Standing Orders Committee. He said in the course of that that the SOC did not expect to be insulted in the literature distributed to Conference delegates. They took their responsibilities seriously and thought that they deserved the respect of the Conference for those judgments. 46 ‘Mr Kelly raised the issue about motions that had been rejected and asked why they had been ruled out of order. He wanted to know why conference, which was the 13,Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 sovereign body of the union, was not allowed to debate on whether they should elect more of their senior officials or whether branches should have more control over the industrial action ballot processes. Mr Williams gave the reason for ruling those motions out of order. A vote was taken on Mr Kelly's motion that the motions that had been rejected should be referred back and was not carried. 47 On the same day all four Claimants wrote a letter to the SOC. In the letter they said that there had been concems among the delegates that motions were being unfairly and unjustly ruled out of order, and that it was that fact alone that had Motivated them to produce the leaflet. They had sought to use their democratic right to try and persuade Conference to support their calll for a referral back. The use of the cartoon (an Asian Buddhist saying) which was a widely recognised piece of Political satire had been solely used to express their feeling of not being listened to and nothing else. They hoped that the SOC would acknowledge that whilst they had over the years vociferously challenged the SOC it had always been done in an appropriate, professional and polite way without resorting to any form of personal abuse. The letter concluded that whilst they categorically refuted the charge of racism against their branches and branch officers if the use of the cartoon had caused any unintentional offence they would apologise to all members of the SOC and Conference delegates. 48 On 21 June 2007 the Claimants wrote to all members of the National Black Members’ Committee. The letter repeated the points that had been made in the letter to the SOC and continued, “The use of the Asian Buddhist proverb cartoon ‘see no evil, hear no evil and ‘speak no evil” is a widely used image of political satire to express a view of not being heard, it is not in any shape of form connected with an intent to imply an attack on someone's race, as such | hope you would accept that there was no intent whatsoever to cause offence. Indeed we do not believe for a moment that BME members from the branches would have sanctioned the leaflet and distributed it, had it had any hint of that connotation. However we acknowledge that unintentionally we may have caused offence and therefore offer our sincere apologies.” 49 _ Linda Perks produced a short report on 21 June 2007 which dealt not only with the provenance of the leaflet but also with whether there was a prima facie case against the Claimants and Mr Waterfall of being in breach of the union's rules. She found that all four branch secretaries (that included Mr Waterfall) had admitted authorising the production of the leaflet on behalf of their branches, that Ms Muna had admitted producing the cartoon and the text, and that Mr Debus had confirmed that his branch had printed the leaflet and borne the cost and that his delegation (which did not include Mr Waterfall) had handed out the majority of the leaflets, She refers in her report to “the complainants” who had found the leaflet potentially discriminatory and the importance of their perception. However, Ms Perks never spoke to any black members of the union, including Ms Miller and Mr Williams, and it is not clear who the complainants to whom she referred were or how she became aware of their perceptions. It appears to be a reference to what Ms Miller said on the 14Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 ‘opening day of the Conference. Ms Perks recommended that there was a prima facie case against all five individuals, namely the four Claimants and Mr Waterfall. 50 On 20 June 2007 the National Black Members’ Committee in their bulletin “Black Action” said that although they understood the leaflet’s disquiet about more than 50 motions being ruled out of order they were concemed about the image used. It was pointed out that the Chair of the SOC was black and that racists routinely compared black people to monkeys in order to undermine them. 51 On 27 June 2007 Mr Nelson wrote individually to the four Claimants and Mr Waterfall to advise them that they were a subject of a complaint and allegations relating to the production and distribution of the leaflet with offensive and potentially discriminatory content at the Conference. The Chairperson of the NEC's Development and Organisation Committee had given authority to conduct a disciplinary investigation in accordance with Rule 1.5. The investigation would be Conducted by Gloria Mills and John Freeman and its purpose would be to establish whether there was a prima facie to answer. 52 _ Mr Kelly was interviewed on 6 September 2007. He was asked whether he had any misgivings about the use of monkeys to depict the SOC. He said that the cartoon was not depicting them as monkeys but that the use of the three wise monkeys was a common image used to denote people who are not listening, and what the cartoon was saying was that the SOC was not listening to the genuine concerns of the branches. He saw no connection with race and it was something that never crossed his mind. Not every use of monkeys implied racism and it had to be seen in context. He gave examples of when the union had used monkey images and said that he had No track record of making racist comments and in fact the opposite was true. As soon as they had found out that offence had been taken, they had explained their actions to the NMBC and the SOC. 53 __Mr Waterfall was interviewed on 7 September 2007. He said that he had agreed with Mr Debus that their branch together with others should produce a leaflet to be handed out to delegates. He had seen the draft leaflet with the cartoon in place a few days before the Conference. He was asked if he had any misgiving about using monkeys to depict the SOC and he said that it was a fairly universal image and he ‘saw it as a symbol of injustice. It was directed at the people who had barred them from the Conference and had ruled their motion out of order. It had no racist connotations and if he had had any misgivings he would have said something. He was asked if he could see how some people, not least a black person, might find the use of monkeys to depict them offensive. He said in hindsight if the leaflet were to come again he would not allow it, but no offence was intended and he apologised now for any offence caused. It was never his or Hackney’s Branch intention to cause any offence. He reiterated that the cartoon was intending to convey that the SOC was not listening, and not that the SOC were like monkeys. He wanted to apologise if he had caused inadvertent offence. 54 Mr Kasab was also interviewed on 7 September 2007. He said he had not seen the leaflet but that Mr Debus had read out the content to him and he had agreed to support it because his branch had been concerned about the motions that had been ruled out and wanted to do alll it could to have them reinstated. He had played 15Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 No role in distributing the leaflet. He had signed the letter to the SOC apologising if it had caused offence and was happy to apologise to anybody offended by it. However, he did not believe that the image itself was offensive or discriminatory. The three wise monkeys symbolised “see no evil, speak no evil, hear no evil” and had no racist connotation attached to it. He was aware that monkeys had been used in a racist way but there was no evidence that that was the way it was being used here. The leaflet was not aimed at any individual but was making a point about important debates not being held. He said that he had spent his life fighting racism and had led campaigns on black and anti-racist issues and he and his branch had campaigning to get the BNP's offices closed. 55, In her interview on the same day Ms Muna said that her branch had been upset about their motion being ruled out of order and they could not see how it was in breach of Rule O. She had met with the other Claimants as friends and had said she was producing something and would send it round to them. The leaflet had gone around her branch executive, which included two black members and a diversity officer, and no comments were made about the cartoon. She had produced and drafted the leaflet and had drawn the cartoon herself. She had used the three wise monkeys because it is well known and suited the message of the leaflet. She was asked why she had chosen monkeys for the cartoon and responded that no-one would have known what she was talking about if she had used rabbits, She was asked whether it had occurred to her that a black person might find the depiction offensive and she said that everything depended on context. She believed that two members of the SOC were black and said that if she had drawn two monkeys to caricature the two black members that would have been offensive. 56 Mr Debus was interviewed on 6 September 2007. He said that his branch had printed the leaflets and had taken them to the conference. They had been handing: them out since Saturday. He had seen nothing wrong with the leaflet. After Ms Miller's speech on Tuesday he had been told by two delegates that the leaflet was racist, and one of them had said that the black members of his delegation should attend a meeting of the black delegates and explain their position. He said that if he had realised that the leaflet might be construed as it had been then he would never have endorsed it. There had been no intention on his part or that of his branch to be racist or offensive. 57 Mr Freeman and Ms Mills also interviewed Bev Miller on 8 November 2007. She said that black members had been upset about the leaflet and had approached her. They felt that it was directed at Clytus Williams. She said that she had not liked the leaflet and the use of the image of monkeys had been the main problem. The cartoon had appeared to her to be three different faces of Mr Williams. It must be emphasised that the monkeys in the cartoon could not by any stretch of the imagination be seen to be a caricature of Mr Williams. She said that the use of monkeys implied a lack of intelligence. She said that she understood where the image came from, but she would have preferred the use of some other image. However, she thought that it had been a mistake and that there had been no intention to be racially offensive. There had been a divided view in the black members’ caucus about the leaflet. No vote had been taken but she thought that those against the leaflet outnumbered those who did not mind it. 16Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 58 Prior to 11 December 2007 Mr Freeman drafted five draft versions of the report which he sent to Ms Mills to seek her agreement. The report made clear that the complaint against the branch officers was that the text of the leaflet was offensive towards members of the SOC because by alleging that the SOC had rejected motions because they were controversial it had questioned the integrity of the SOC. The cartoon was also offensive towards the SOC in as much as it ascribed to the SOC the characteristics associated with the cartoon, i.e. not listening to matters that it did not want to hear. The cartoon was also by its use of monkeys potentially racist. The report made no reference to the interview with Ms Miller. 59 The conclusions and recommendations section of the report had five sub- headings. These were “racist intent’, “content ‘of the leaflet’, “production of the leaflet”, “lack of financial control in Hackney branch” and “possible misuse of Unison funds”. 60 _Under “racist intent” the conclusion was that there had been no racial intent in the use of the cartoon, and that Messrs Kelly and Kasab had not seen the cartoon before giving their endorsement to the leaflet. It pointed to a lack of care in the Process used to give their branches’ endorsement to the cartoon and in failing to consider how the cartoon might be regarded by some members, not least black members. The authors of the report also found regrettable the arrogant denial and defence of their position when they could have apologised immediately in their responses to the preliminary enquiry. That seems to have completely overlooked that the four Claimants had immediately apologised to the SOC and the National Black Members’ Committee when they realised that some individuals had found it racially offensive. The recommendation was that that these matters be drawn to the attention of the five (the four Claimants and Mr Waterfall) and that they be invited to attend training on racial awareness. What is clear from that recommendation is that the authors of the report did not consider the racial aspect of it serious enough to merit disciplinary action or sanction. 61 _Under “content of the leaflet” the conclusion was that all the five had sought to defend the content of the leaflet. The SOC was made up of lay representatives and there were due processes to challenge its decisions. The production of the leaflet had shown total disregard for the processes and in attacking the SOC and imputing improper considerations on how it reached its decisions the authors of the leaflet had shown contempt and disrespect for the SOC as an elected body and for its members. The actions of the five officers were clearly inconsistent for the Rule B4.6 and it recommended that disciplinary action be taken against all of them except Mr Waterfall in view of his mitigation and apology. 62 __ Under “production of the leaflet” the conclusion was that the leaflet challenged the decisions of an official body within the democratic lay structure of the union and there had been no need for such a leaflet to have been produced. The actions of the five branch officers were contrary to Rule G4.2.4, and it recommended disciplinary action against all of them except Mr Waterfall. No action was recommended against Mr Waterfall because it was said that he was new and inexperienced in the post of branch secretary and had played no part in the production of the leaflet other that approving its production and had given an unqualified apology. 17Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 63 __ The report also concluded that the absence of a decision by the Hackney branch to pay for the cost of producing the leaflet on behalf of the four branches represented a misuse of Hackney branch finance. The key person responsible within the Hackney branch for the production of the leaflet had been Mr Debus, and it was fecommended that disciplinary action be taken against him in respect of this. There was also a recommendation that Mr Waterfall should receive training on his role as branch secretary. 64 Mr Freeman sent a sixth draft version to Ms Mills on 11 December 2007. There was a significant change in the conclusions and recommendations in this version. Under “racist intent” the recommendation was changed to that disciplinary action should be taken against the four branch officers for the lack of care exercised by them leading to the production of the leaflet giving racist offence to some members and that the five be invited to attend trait ing of racial awareness. The four referred to the first part of the recommendation, although not specified, were the four Claimants. There was no explanation of why the position had changed for the four Claimants and not for Mr Waterfall 65 't would appear that Ms Mills sought an explanation of why this recommendation had changed. The response from Mr Freeman in an email dated 18 January 2008 was that following a discussion with Kevan Nelson he had realised that the only way to enact their recommendation was by referring the matter to a disciplinary panel. The only meaning that can be attributed to that Mr Nelson advised him that their recommendations, namely that their observations be drawn to their attention and that they be invited to attend training on racial awareness, could not be implemented unless disciplinary action was taken on this count. If that is correct (and itis difficult to see how else to interpret it) the change in the recommendation was not due to a change in the view of the severity of that particular complaint, but in order to enable their recommendations to be implemented. However, no change was recommended in the case of Mr Waterfall who was not facing disciplinary action for attacking the integrity of the SOC. 66 —_On 26 March 2008 Mr Nelson wrote to the four Claimants that the NEC at its meeting on 13 February had agreed to bring charges against them in accordance with Rule | of Unison’s rules. There were three disciplinary charges against them These were: “Allegation 1 - that your role in the production of the leaflet “Whose conference” that gave racist offence to members showed disregard for the union's aims and objectives and was in breach of Rule D4.6 and Rule 12.6. Allegation 2 - that your attack of the integrity of the members of Standing Orders Committee was in breach of Rule B4.6 and Rule 12.3 and Rule [2.1. Allegation 3 - that your responsibility for the production and distribution of the leaflet to campaign against decisions of a democratic body within Unison; instead of using the democratic processes defined in Unison rule and standing orders were in breach of Rule G4.2.4 and Rule 12.1.” 18Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 Mr Debus had additional charges against him in relation to using funds to produce the documents. 67 _ Annette Mansell-Green, who is an elected member of the Respondent's NEC, was appointed Chair of the panel to hear the disciplinary charges against the Claimants. The other members of the panel were Maureen Merrinell and Mark Clifford, who were also NEC members at the time. The hearing took place over nine days - 14 to 16 May 2008, 18 to 20 March 2009, 21 April 2009 and 16 and 17 July 2009. Mr Freeman presented the case against the Claimants and took the panel through his investigation report. The Claimants gave evidence themselves and called a number of witnesses. 68 Caroline Conroy, the Equalities and Diversities Officer at the Housing Corporation Branch, was one of the witnesses called by the Claimants. She said that she had seen a draft of the leaflet and had consulted other members of the branch. ‘She had told Ms Muna that she saw no. problem with it and none of the members who saw it, including the black members, had raised any concem. She was asked whether it had occurred to her that black members may have found use of the monkeys in the cartoon used for the leaflet offensive. She said that it was a well- known image and she did not think it would be construed as racist. 69 Kathy Hamilton, branch treasurer of the Hackney Local Government branch, also gave evidence. She had attended the Conference and had handed out the leaflets on the Sunday and the Monday, 17 and 18 June. She is black person. She Said that she had handed out leaflets to many black delegates and had not received any negative feedback. She described how surprised she had been at Ms Miller's negative remarks. She felt the image had been misunderstood and offence taken where none had been intended. She would not see the three monkeys’ image as racist but as seeking to portray the SOC as being “closed”. She and another black attendee had gone to the black members’ caucus at lunch-time that day and had tried to raise the issue but Ms Miller had told that it was not to be discussed. 70 Matthew Waterfall was also called as a witness, He said he had seen the leaflet with the image and had checked it for accuracy and had sanctioned it. He would have raised an issue if he had thought that the leaflet was offensive. He said that Hackney branch was racially a very mixed branch and that the Branch Committee reflected this, with approximately half of them being black. No adverse comments had been made about the leaflet. Race was a big issue in Hackney and Mr Debus was known for his part in anti-racist campaigns. He said that he been Branch Chair in 2005 and a steward before that. He had been informed on 4 February 2008 that he would not face any disciplinary action but would be sent on race and diversity training, To date this had not happened and no-one at Unison had followed it up. 71 At the start of the session on 21 April 2009 Ms Mansell-Green, the Chair of the Panel, said that after considering the evidence that had already been submitted the panel had decided to strike out allegation number 3 for all four defendants. That was the allegation that the production and distribution of the leaflet to campaign against decisions of a democratic body within Unison were in breach of Rule G4.2.4 and Rule 12.1. 19Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 72 _ Mr Freeman, in summing the union’s case, accepted that there had been no racist intent on the part of any of the four Claimants. His interpretation of the evidence and the conclusions that he said were to be drawn from it were that Mr Kelly held the view that the SOC was biased and corrupt and was somehow acting on behalf of the hierarchy of the union to prevent debate of controversial motions, and that this was the view that was presented in the leaflet. 73 __ The hearing concluded at some stage on the afternoon of 16 July and after a short adjournment the panel communicated its decision, which was that allegations 1 and 2 had been proven against all four Claimants, and that the statements of mitigation would be heard the following day. It appears from the panel's notes made on 16 July 2009 that it had met on 22 April and provisionally made its decision. We have not seen the notes of that meeting. Having heard submission on 16 July 2009, the panel revisited its original decision to see if there was anything in the submission that had made them change their mind. 74 _ In respect of allegation 1, the panel concluded that by producing a leaflet that had given racial offence the Claimants had been in breach of the Union's aims and objectives and rules which provide that all members are to be treated with dignity and fespect. Ms Mansell-Green's evidence to us was that the Claimants were not racist but that they had been careless. It was. accepted that there had been no racist intent on their part. Ms Mansell-Green said that what struck the panel was that while apologising for any unintentional offence the Claimants were unwilling to accept that some members, particularly black members, may have found the leaflet to be offensive and that it may have been reasonable for them to do so even if there was no intent on the part of the Claimants to cause racist offence. It is clear from the evidence that was before the disciplinary panel and us that the Claimants had never been unwilling to accept that some people did find it offensive, and as soon as they became aware of that they had apologised immediately for any offence that had been caused. The Claimants did not comment on whether or not it was reasonable for people to have taken offence, but maintained that it had never Occurred to them that anyone might find it racially offensive. She also said that if Mr Freeman and Ms Mills had not made a recommendation in respect of this charge it would never have gone to a disciplinary and there would have been no sanction. 75 Allegation 2 concerned the attack on the integrity of the SOC. The panel concluded that the leaflet had caused upset to the SOC and had involved a pre- meditated campaign to attack the SOC, Ms Mansell-Green said that the panel had taken the leaflet as alleging that the SOC made decisions about motions to be accepted or rejected on political grounds depending on whether they were Controversial. In the Tribunal's view, that would in effect amount to an assertion that the SOC was acting in breach of the union rules. She said that that was unacceptable criticism of a body of lay members who worked very hard and who had difficult job to ensure that the union was not put at risk through inappropriate discussion and decision-making. Ms Mansell-Green said that the suggestion that the SOC made its decisions on political grounds was outrageous as was the suggestion that the SOC was influenced by paid and unelected officials. The Claimants had not made that Suggestion but that was how the text of the leaflet had been interpreted by the union. 20Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 76 On 17 July 2009 the Claimants put forward their mitigation. In their mitigation amongst other things all four emphasised their commitment to fighting race discrimination and set out various ways in which they had done so. 77 _ In deciding the appropriate sanction to impose Ms Mansell-Green's evidence was that the panel could only impose one of the three penalties listed at Rule 18(4)- (6), namely suspending the Claimants from any benefits, barring them from holding office or expelling them. She said that any form of educational or organisational resolution (which would include racial awareness training) was not available under Rule 18. We do not understand Rule 18 to be limiting the NEC to only those three penalties, but simply to be stating those as penalties that may be imposed. If Rule I8 is limited in that way, the advice given by Mr Nelson to Mr Freeman makes no sense. Ms Mansell-Green’s evidence was that the proven charges were serious and merited @ more serious sanction than suspension of benefits. She said that they were particularly concerned at the attacks on the integrity of the SOC. It was quite clear from the tenor of Ms Mansell-Green's evidence that that was regarded far more seriously than the unintentional and inadvertent causing of racial offence. 78 The decision of the panel which was communicated to the Claimants on 23 July 2009 was that Mr Debus was banned from holding any Unison office for a period of five years, Ms Muna was similarly banned for four years and Mr Kelly and Mr Kasab were banned from holding any union office for a period of three years. Ms Muna was banned for four years because she had played a bigger part in the production of the leaflet and had drawn the cartoon, and Mr Debus for five years because he had played the biggest part in the instigation and production of the leaflet. 79 We also had evidence before us of other occasions when individuals had inadvertently caused racial offence, used monkey cartoons inappropriately, and not treated their colleagues with respect or dignity. At the National Delegate Conference in June 2007 Mr Cantello made a remark about seeing “a sea of orange” in reference to a display of voting cards. He made it clear the following day that it was not in any way a reference to politics in Northern Ireland, and apologised for any offence that he may have caused to delegates. Ms Miller also at the same conference complained about a delegate referring to black people as “coloured”. In June 2003 the London Regional Convenor, Geoff Martin, wrote in a bulletin that was distributed to all the London region delegation at the Conference, that Labour Link, an elected body within Unison that ran the affiliated political fund (“APF”), had “in a desperate attempt to shore up its shaky position” resorted to “downright lies" and that what it said was “total bollocks”. In the summer of 2008 (when disciplinary action was ongoing against the Claimants for using a monkey cartoon) Unison's South East Region Disabled Members’ Group in its newsletter when urging its members (disabled people) to correspond with them used an image of the three wise monkeys with the words “hear no evil, speak no evil, see no evil” with the words “Just tell us the truth guys, that is all we want’. That image was withdrawn after the Regional Secretary asked it to be withdrawn. In none of these cases was any disciplinary action taken against the individuals concerned. 21Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 Conclusions Article 11 80 __ We were referred to the fact that the European Committee on Social Rights has ruled that section 64 of TULR(C)A 1992 infringes unions’ rights to organise contained in Article 5 of the European Social Charter, We cannot make a declaration as to whether any legislation is incompatible with Convention rights. We are, however, obliged to read legislation and give effect to it, as far as we can, in a way that is compatible with the Convention rights. We are not satisfied that section 64 violates Article 11(1), but if it does we are satisfied that that state intervention in respect of it complies with the requirements of Article 11(2). Article 11(2) permits state intervention in trade union affairs where such intervention is prescribed by law and is necessary in a democratic society for, inter alia, the protection of the rights and freedoms of others. Thus unions are subject to the all the discrimination legislation, that prevents them discriminating against potential and actual members by not allowing them to join, expelling them or subjecting them to discipline on a variety of Prescribed grounds. It also prohibits them from victimising individuals who complain Of discrimination. Section 64 of TULR(C)A 1992 prevents them victimising against their members on the grounds that that the members have alleged that they are not acting within the Rules. We see that as being necessary to protect the rights and freedoms of the members to challenge their unions if they believe that the union is acting ultra vires or unlawfully. We do not think that section 64 is incompatible with Article 11 or that it is necessary to read into the section the words that we were asked to be the Respondent in order to make it compliant with Article 11. 81 It was not in dispute that by being banned from holding office for a period of 3 to 5 years, each of the Claimants was “disciplined” under section 64(1) of TULR(C)A 1992. Reason for the discipline 82 __It was equally not in dispute that one of the reasons for disciplining the Claimants was that by Producing the leaflet they had attacked the integrity of the SOC by suggesting or implying that the SOC rejected motions because they were controversial and the union did not want them debated. There was a dispute as to whether this was the main or only reason for the discipline, but there was no dispute that it was one of the reasons. Any assertion to that effect would amount to an assertion that the SOC was contravening a requirement imposed by the rules of the union, the effect of which was that motions should be rejected if they had not been in accordance with, or contravened, the Rules. In order to come within section 65(2)(c) of TULR(C)A 1992 it is not necessary for the members to explicitly state that the union or any of its official or representative has contravened any rules, or to specify the rules that are being contravened. It is sufficient that such an assertion can be inferred from, or is implicit in, what was said and that the union believed that that was what the matter was alleging - Massey v UNIFI. 22Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 83 The consequence of that is that the Claimants will have been unjustifiably disciplined unless it has been shown to us that they were disciplined for conduct for which individuals would be disciplined regardless of whether they had asserted that the SOC had contravened the union rules and/or that the assertion was false and they made it in the belief that it was false or otherwise in bad faith. Whe section applies 84 The Respondent's case in essence is that the Claimants would have been banned from holding office for periods ranging from 3 to 5 years, regardless of any assertions they made that the SOC was not acting in accordance with the Union's ules, because they had produced a leaflet that had caused racial offence, even though they had never intended such offence and had apologised immediately to those who had been offended by it. In other words, they would have been disciplined for the way in which they had made their assertion against the SOC, namely by using the cartoon of the three wise monkeys, which had caused racial offence, to demonstrate the point made in the text of the leaflet. There was a suggestion in the further particulars and legal arguments that the Claimants were also disciplined for asserting that the SOC were monkeys or monkey-like or had the attributes of monkeys. It is clear from the investigation report, the charges levelled against the Claimants and the evidence of Ms Mansell-Green that the Claimants were not in fact disciplined for that. 85 We considered very carefully whether the Claimants would have been banned from holding office for 3 to 5 years for the unintentional racial offence. Having done SO, we are not satisfied that, in the absence of the allegation that the SOC was contravening the union rules, the Claimants would have been banned from holding office for such lengthy periods. Our reasons for reaching that conclusion are as follows. 86 _It Is clear that Mr Freeman and Ms Mills, who conducted the disciplinary investigation, did not view the unintentional causing of racial offence by the cartoon to be sufficiently serious to merit disciplinary action, and recommended merely that its observations be drawn to the attention of the five individuals and that they attend facial awareness training. The change in that recommendation was not as a result of the investigators changing their mind about the gravity of that allegation. 87 _ The investigators did not, in respect of that allegation, distinguish between Mr Waterfall and the four Claimants. That might be for the obvious reason that it is difficult to see how in respect of the cartoon Mr Waterfall could be less culpable than Messrs Kelly and Kasab. Mr Waterfall saw the cartoon before it was published and as branch secretary sanctioned and approved it. Messrs Kelly and Kasab did not see the cartoon until they saw the leaflet at Conference, and had not sanctioned or approved it (the cartoon) prior to publication. Furthermore Messrs Kelly and Kasab, and the other two Claimants, apologised immediately to the SOC and the National Black Members’ Committee for any racial offence that it might have caused. Mr Waterfall did not apologise until 7 September when he was interviewed as part of the disciplinary investigation. Mr Waterfall was not disciplined for the unintentional racial offence. If racial awareness training was considered appropriate for Mr Waterfall for causing unintentional racial offence, it is difficult to see how it could be argued that for 23Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 the same matter the Claimants would have been banned from holding office for periods of 3 to 5 years. 88 There was no evidence adduced before us of individuals who were known to be anti-racist, had unintentionally caused racial offence and had apologised immediately being subjected to any disciplinary sanction, let alone being banned from holding office for long periods. The Claimants adduced some evidence of individuals who had made statements to a large audience that might have been considered racially offensive, had used monkey cartoons inappropriately, and had not treated their colleagues with respect or dignity. We accept that the circumstances of their cases were not exactly the same as those of the Claimants, but itis, nevertheless, an indicator of how the Respondent viewed and treated issues of this kind. It is a factor that we can take into account in determining the issue that we have to decide, but it not the only factor and it is not determinative of the issue. 89 _ It was not in dispute that the Claimants had not intended to cause racial offence and that it had never occurred to them that the cartoon used in that context would cause racial offence. The charge against them was that they had been “careless” because they should have foreseen that it would cause racial offence. Other branch officers and members of the branch committee of the Housing Corporations and the Hackney branches who had seen the cartoon and sanctioned it were guilty of the same offence, and they were not subjected to any disciplinary sanction. 90 Looking at the context in which the cartoon was used (i.e. to depict the attitude of the SOC towards controversial motions) it cannot be said that any reasonable person would or should have realised that it would cause racial offence, and that not to do so was somehow “careless”. That is reinforced by the fact that that Never occurred to many people who saw the cartoon before its publication. These individuals included an Equalities and Diversity Officer and black members. 91 The combination of all those factors led us to the conclusion that it had not been shown that the Claimants would have received the disciplinary sanctions that they did for having caused unintentional racial offence by the use of the cartoon in the absence of the assertions against the SOC. Whether the assertion was. ly and/or in bad faith 92 We are satisfied that the Claimants genuinely believed that their motions were not in contravention of the union’s rules for the reasons that they gave when they appealed and to us in evidence. It is irrelevant whether they were correct or not in their belief. What is important is that they genuinely believed it and had reasons for doing so. They, therefore, believed that the reason for rejecting them were that these were controversial matters that the union and the SOC did not want debated. The Claimants made the assertion that they did about the SOC believing it to be true. They raised the matters that they did in the leaflet in an attempt to canvass support to get the motions referred back at the start of Conference. We are satisfied that they made the assertion in good faith and that they had no ulterior motive for making it. In the circumstances, it is not necessary for us to decide whether the assertion was in fact true or false. 24Case Numbers: 2205199/2009; 2205200/2009; 2205201/2009; 2205202/2009 93 It is, therefore, our conclusion that section 65(5) and (6) do not apply in this case, and that the Claimant were unjustifiably disciplined. {anor JUDGE REASONS SIGNED BY EMPLOYMENT JUDGE ON ~ AND ENTERED IN THE REGISTER IE’ Davy orl. FOR SECRETARY OF THE TRIBUNALS 25