A UNISON NEC member (and past President of the Union), has successfully bought a complaint against UNISON to the Certification Officer.
Whether or not one agrees with the action taken in the particular case, it is important to recognise and salute the courage required on the part of an individual to take such a case against one's own union.
Although the Certification Officer carries out a role that has existed for more than 100 years, it is true that their role in considering complaints from trade union members has its origins in the anti-union laws of the Thatcher Government. Therefore, those of us who have found ourselves compelled to challenge what we considered to be wrongdoing by making such a complaint have always risked the opprobrium which comes with being seen to complain about the labour movement using anti-union laws.
Although the detailed decision of the Certification Officer does illustrate the fact that the case presented by UNISON (that is to say by UNISON officials on behalf of the trade union) did not disagree with the facts as presented by the applicant, and also that UNISON officials were happy to agree with them as to the appropriate remedy, this does not detract from the considerable personal courage which will have been required to bring the case.
I would like to be able to say that this was a characteristically courageous challenge to the unjust abuse of power by a comrade upon whom I could always rely for support when I was part of an embattled and abused minority on the UNISON NEC. I would like to be able to say that this episode reminds me of how the applicant in this particular Certification Officer case had stuck up for an NEC member who was compelled to attend meetings remotely for several years because the meetings took place in a venue which was not accessible to them. I would like to be able to say that the individual who so courageously mounted this particular challenge had, to my knowledge, a long track record of confronting wrongdoing within the trade union.
I would like to be able to say all of those things. Unfortunately I can’t. (My recently increased dosage of morphine must have led me to hallucinate...)
In fact, this case has been brought, by someone who was a respected leader of UNISON’s “Ancien Regime”, to try to enforce continued compliance with the (deeply flawed) established “custom and practice” for dealing with internal disciplinary cases (set out in a protocol in 2001 after the - then - new General Secretary had intervened to pull the plug on disciplinary action against your humble blogger).
UNISON Rule I.5.3 states that “In any case, the body on whose behalf [a disciplinary] investigation is undertaken shall consider the result of such investigation before deciding whether or not a charge should be brought.” Where that body is the NEC, the NEC therefore needs to consider the result of the investigation.
The NEC protocol elaborates as follows; “The result of the investigation will be reported back to the NEC for consideration of whether or not charges are brought based upon a prima facie case being established. So as not to prejudice any members’ case, the recommendation will be solely based upon a prima facie case being established or not. The report is not made available to the NEC as there is a strong risk of prejudice to the member potentially facing charges under Rule I. This practice has been endorsed by the High Court. In cases where a prima facie is established, subject to the NEC’s approval, charges will be brought and a disciplinary panel convened in accordance with Schedule D to test the evidence.”
Therefore, because disciplinary panels consist of NEC members, it is considered that it would be inappropriate for the NEC, which will include potential members of a future panel, to receive the report of an investigation the result of which the Rules require them to consider. The consideration is (formally) delegated to the relevant Committee Chair (so that, technically, the NEC has considered the result of an investigation the report of which all but one of them have not seen). In practice, the Chair has generally rubber stamped a recommendation from the relevant official. Investigations which do not lead to disciplinary action never make it as far as being reported to the NEC.
NEC members are permitted to ask questions about disciplinary cases reported to the NEC, but only to ask them in writing and the answers are received only by the individual member asking the question. Therefore, UNISON members being disciplined "by the NEC" are actually being disciplined in circumstances in which most NEC members have no idea what they have accused of, what evidence exists and whether the conduct of the cases is reasonable. This established practice has contributed to expensive and embarrassing errors such as that in the case of four activists who were members of the Socialist Party.
Nevertheless, it is this flawed status quo which the Certification Officer has now ordered must be re-applied in a particular case, in which the NEC in March had voted not to proceed with recommended disciplinary action. The NEC decision in this case was (understandably) criticised because it was taken without the NEC explaining its reasons.
The NEC could not of course explain its reasons since no members of the NEC (bar one) had seen the report upon which the recommendation which they opposed had been based. The Certification Officer decision vindicates the approach of an NEC accepting a recommendation on the basis of the delegated decision of an individual without ever having seen the report of an investigation which the rules require them to consider.
The Certification Officer enforcement order means that the NEC will need to reconsider the particular case (and, in so doing, will not really have any choice other than to accept the recommendation put before them however much they may feel that this amounts to an abdication of their responsibility under UNISON Rule I.5.3). The wording of the enforcement order was agreed between UNISON officials and the applicant.
The Certification Officer enforcement order requires that the reconsideration of the case “will be conducted in accordance with fairness and the principles of natural justice, taking into account that the NEC does not see the investigation report.” So that's all quite clear really…
The way forward in the particular case may be settled.
Whether UNISON should continue with an approach to disciplinary action that has, in the past, often shamed our trade union is another, and much larger, question.
Not that any of this should detract from our admiration for the courage and determination of the applicant before the Certification Officer.