After the Employment Appeals Tribunal decisions - what next?

I have blogged before about UNISON’s decision to appeal to the Employment Appeals Tribunal against rulings against the Union in cases brought against it by Tony Staunton and Yunus Bakhsh.

The appeals are listed to be heard tomorrow – Monday 9 February.

The decision to lodge these appeals, originally taken by the Presidential Team, was endorsed by the Development and Organisation Committee, of which I am a member. Although I still believe the decision to appeal was wrong (and will hold that belief regardless of the outcome in the tribunal) I am not blogging to repeat arguments made elsewhere.

I am however thinking ahead about how we, as a Union, may respond to EAT decisions in these cases.

In a nutshell, the point the Union lost in the Bakhsh case concerned the Union’s right to suspend a member from office without first bringing charges against the member. If the EAT finds in UNISON’s favour in this case, the National Executive Council(NEC) (meaning in effect the Chair of the relevant NEC Committee) will have the power to suspend a UNISON member from holding office although they face no charges. Although the suspension is carried out in the name of the NEC, the NEC as a whole does not receive details of the reasons for the suspension, other than a brief written summary on which individual NEC members can ask written questions but which cannot be debated or discussed.

In another nutshell, the point the Union lost in the Staunton case concerned the Union’s right to ban someone who had been suspended from holding office from being a candidate in an internal Union election. If the EAT finds in UNISON’s favour in this case the Union will be able to advise the returning officer that any candidates nominated in (for example) the current elections to the NEC who are suspended from holding office are ineligible to be candidates. Nominations close on Friday 13th and there is no provision of the election procedures to reopen nominations should a candidate be ruled out in this way.

Therefore, if UNISON wins both cases, it would be possible for a candidate for election to be suspended from holding office (even though they faced no charges) and therefore to be disqualified as a candidate although they had been found guilty of no offence. In practice the decision could be taken by one NEC member on the recommendation of one officer. There would be nothing anyone could do about this (within the Union) even if the suspension were later lifted and all charges dropped (or dismissed at a subsequent hearing) as the election would by then have taken place.

Whether or not you agree with the Certification Officer about these two cases it is not difficult to agree with the view expressed in the Bakhsh decision that;

“A discretionary power to suspend a member from an office to which he or she has been elected is a very significant matter”.

It is also hard to argue against the following statement drawn from the decision in the Staunton case;

“the right of a union member to stand for election is an important right of membership, as in any democratic organisation, and should not be taken away unless the members have so decided in a clearly expressed rule to that effect.”

Were the Union to be successful in both these cases a heavy burden would be placed upon the shoulders of those charged with exercising the discretion of the NEC under Rule C.7.4. No one in UNISON, I am sure, wants to see the use of administrative means to stifle political dissent.

How then are we to protect UNISON from the perception that the power of suspension could be used for political advantage in order to disqualify candidates who might succeed in being elected to the NEC?

What safeguards exist?

Do our existing procedures, in which the NEC does not receive full information about such decisions taken in its name, provide sufficient protection?

I don't think I am the only UNISON member worried about the answers to these questions.

Update on Monday evening - the EAT have reserved judgement.