Wednesday, February 22, 2012

Unappealing?

I saw my old friend Glenn Kelly today, with a copy of an important legal judgement (http://www.bailii.org/uk/cases/UKEAT/2012/0188_11_2202.html).

Glenn, and three other Socialist Party comrades caught up in the long-running "Defend the Four"/three monkeys case defeated UNISON's appeal to the Employment Appeal Tribunal (EAT) against the decision of an employment tribunal that they had been subject to "unjustifiable discipline" by our trade union.

The EAT rejected all UNISON's grounds of appeal and upheld the tribunal decision that "the four" had been subject "unjustifiable discipline" because they had alleged - in good faith - that UNISON (through our Standing Orders Committee)(SOC) had been breaching our Rules at National Delegate Conference 2007.

I think that this outcome is just - but am most pleased that the decision to appeal, which I had criticised as unwise at the time has not, in the end, set any precedent which really damages the interests of our movement (as it might have).

The key part of the judgement, in this regard is "The restrictions on trade union discipline imposed by s.65(2)(c) do not amount to an unlawful contravention of Article 11 ECHR.  Members of unions have a right to hold their unions to account for breaching union rules where the members act in good faith."

The EAT have carefully distinguished the specific legal provision which prohibits a trade union from disciplining members for asserting, in good faith, that the union's rules have been breached (which they consider to be in the public interest) from the more general restrictions on disciplinary action (for example against strike breakers) which (they imply) breach our freedom of association as trade unionists (under Article 11 of the European Convention on Human Rights - ECHR).

Since the appeal outcome might have been far more damaging for our trade unions than it was, I hope that this development will now signal an end to dispute and argument in this case.

Further appeals (to courts perhaps less knowledgeable about trade unions than the EAT) would renew the risk of a precedent-setting judgement which would place obstacles in the way of unions trying to defend our Article 11 rights. To run such a risk in these circumstances would not be responsible.

As trade unionists, we should fight like tigers for our right to discipline strikebreakers (as we should fight for our right to exclude fascists from our ranks). We would be making a profound mistake were we to go to war to defend our "right" to discipline members of our union who complain (in good faith) of breaches of our Rules.

Today's NEC meeting reflected repeatedly on the fact that we face a very tough year. In anticipation of these times, our General Secretary told last year's National Delegate Conference that there were "no enemies in the hall." We need unity in these times and can well afford to welcome some comrades back into the hall.

I hope that the parties to this legal case will, with moderation and goodwill on both sides, now negotiate a settlement. The prospect of further litigation in this case is surely, from any point of view, unappealing.

Sent using BlackBerry® from Orange

3 comments:

Anonymous said...

wouldnt want the truth out there would we you clown,, Kelly is the Scab representing non UNION MEMBERS,, A crime against the people,, and i bet he knows it!

Anonymous said...

This judgement is also important because it recognises that it was not just the rights of the four that were violated by UNISON's actions, but those of all the members who elected them. No previous judgement has recognised this. It is therefore a question to be put to UNISON's bureaucracy, and specifically the decision makers in this case, as to how the democratic rights of hundreds of paying members have been violated and what can be done to ensure that such a shameful episode isn't repeated.

Anonymous said...

After fighting their case through the ET and EAT could I ask the question - how many rank and file Unison members had thier equal pay cases taken to a tribunal in the branches of these four activist? I suspect the answer to be none. Seems the legal process is good enough for them but not for low paid women