What follows is the text of an open letter to the General Secretary of UNISON which has (this evening) elicited the following (perhaps disappointing) response; “I refer to your letter date 6 July 2009, co signed by 8 other NEC members. The union has received formal notice that legal action is being taken against it in connection with this matter. Therefore it would be inappropriate to comment further until the legal process has been concluded“
The letter read as follows;
"We are writing as members of the National Executive Council (NEC) to make a number of points about the status of John McDermott in relation to the recent NEC election, and also to make a constructive proposal to resolve the issue which has arisen as a result of the independent scrutineer publishing a report in which in one case they have declared the losing candidate to have been elected.
John was eligible for nomination in accordance with the election procedures (as is evidenced by his name appearing on the ballot paper). The election procedures deal with eligibility for nomination (at paragraph 11) but are silent as to what happens if the status of a candidate changes after they have been nominated.
After John had been nominated (but before he was elected) he was dismissed by his employer as a result of a dispute in which UNISON was supporting him. His branch at the time sought to continue his full membership in accordance with Rule C.7.1.2.
When John was excluded from the April meeting of the National Executive Council it was proposed that the NEC could take a vote to use its powers under either Rule C.7.1.1 or Rule C.2.4.2 to have permitted John to remain. The then President would not permit a vote on these suggestions but only on the suggestion that John be permitted to remain as an observer (a proposal which was defeated).
John subsequently resumed employment and full membership of UNISON. John is eligible to take up his seat now, and has been since the result was declared – in accordance with Schedule C.7, which refers to eligibility from the point of election. The Rule Book is silent as to circumstances such as he found himself in between nomination and election.
Under section 51 subsection 6 of the Trade Union and Labour Relations (Consolidation) Act 1992 the ballot must be conducted so that the result is determined solely by counting the number of votes cast directly for each candidate. John got 4,670 votes. His opponent had secured 4,577 votes.
The first that John knew that he had won the vote was when he saw the results. The first that he knew that he had been “withdrawn” from the election was at exactly the same time.
John is not a member of a "class of members" excluded from eligibility by the Union's Rules and it is not lawful for him unreasonably to be excluded in accordance with section 47 of the Act.
Therefore, on the face of it, ERS appear to have been wrong to certify the election as having taken place in accordance with the statute. This may have arisen as a result of incorrect information being provided to ERS from within UNISON or it may have arisen for some other reason. If information was provided to ERS on UNISON’s behalf (or by someone who believed that they were acting on UNISON’s behalf) which led ERS to conclude that John should be “withdrawn” from the election, we would be grateful to have some further information about this.
In particular we would like to know why neither UNISON nor ERS informed John that he had been "withdrawn" from the election in advance of publication of the results to all candidates. If it is felt that the legislation prohibits this in some way we would appreciate an explanation of why this was so.
However, the independent scrutineer has now reported to the Union that John has not been elected. Harvey's Law of Employment suggests that if a Union considers that the independent scrutineer has made an error the prudent course of action will be to refer the matter to the Certification Officer.
UNISON cannot expect that John will simply drop this matter having won the election. To do so would disrespect our Union and the members who voted in the election expecting that the winning candidate would be elected.
Equally, no one wants avoidable conflict about this issue to divert our collective energies from confronting hostile Government policies, preparing for the prospect of a Tory Government, or taking on the far right.
Therefore we wish to propose that UNISON should support John in referring the matter to the Certification Officer. If it is necessary for John to submit a complaint, so should another
UNISON member (acting with the consent of the NEC). Any UNISON member would appear to have sufficient locus to take such action.
All parties should then agree to accept the decision of the Certification Officer and to abide by any enforcement order about this matter if one were made by the Certification Officer. We hope that you will agree that this is a sensible approach to resolving a difficult question and look forward to your response.
Yours sincerely,
April Ashley
Roger Bannister
Bernadette Gallagher
Paul Holmes
Glenn Kelly
Vicky Perrin
Jon Rogers
Jean Thorpe
Hannah Walter"
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