![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> The Musicians’' Union v Kelly (TRADE UNION MEMBERSHIP) [2019] UKEAT 0111_19_1806 (18 June 2019) URL: https://www.bailii.org/uk/cases/UKEAT/2019/0111_19_1806.html Cite as: [2019] UKEAT 111_19_1806, [2019] UKEAT 0111_19_1806 |
[New search] [View without highlighting] [Printable PDF version] [Help]
At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE SOOLE
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
LORD JUSTICE COULSON
and
For the Appellant | MR STUART BRITTENDEN (of Counsel) Instructed by: Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW |
For the Respondent | MR DAVID READE QC (of Counsel) Instructed by: Messrs Harbottle & Lewis Solicitors 7 Savoy Court London WC2R 0EX |
SUMMARY
TRADE UNION MEMBERSHIP
CERTIFICATION OFFICER
The Claimant, a member of the Respondent Trade Union, made claim to the Certification Officer (CO) pursuant to s.108A TULCRA that it had breached the Union rules by the instigation of disciplinary proceedings in respect of complaints of alleged disciplinary offences occurring more than 28 days before the date(s) of complaint.
The CO held that the Union rules gave it no power to instigate disciplinary proceedings in such circumstances; and set aside the sanctions imposed on the Claimant, which included expulsion from the Union for 10 years.
Allowing the Respondent's appeal, the EAT held that on a proper construction of the Union rules it had a discretion to instigate disciplinary proceedings in respect of alleged disciplinary offences occurring more than 28 days before the date(s) of complaint.
THE HONOURABLE MR JUSTICE SOOLE
"Rule I: Objects and definitions
2. The MU's objects are:
a. To secure the complete organisation of all musicians for their mutual protection and advancement;
b. To regulate members' relations with their employers and/or employers' associations, and with each other;
….
h. To promote equality for all including through:
(i) collective bargaining, publicity material and campaigning, representation, Union organisation and structures, education and training, organising and recruitment, the provision of all other services and benefits and all other activities;
(ii) The Union's own employment practices.
i. To oppose actively all forms of harassment, prejudice and unfair discrimination whether on the grounds of sex, race, ethnic or national origin, religion, colour, class, caring responsibilities, marital status, sexuality, disability, age, or other status or personal characteristic.
Rule V: EC powers and duties
1. Subject to the Rules the EC shall have all the powers of the MU and all powers necessary for or conducive to the attainment of the objects of the MU including the power to delegate its authority. Mention in the Rules of specific powers of the EC shall in no way limit these general powers, always provided that policy decisions of the biennial Delegate Conference shall be binding on the EC as far as is practicable.
….
4. The EC shall determine any matter on which the Rules are silent but shall have no power to alter the existing Rules, save as is expressly provided for elsewhere in these Rules.
…..
16. At its first meeting in each year the EC shall appoint from amongst its number three members plus one reserve to serve on a Disciplinary sub-committee and three members plus one reserve to serve on an Appeals sub-committee comprising different EC members. In the event that a member of the Disciplinary sub-committee or Appeals sub-committee has or may have a conflict of interest in relation to a charge to be heard by that sub-committee, that member shall for the purpose of proceedings relating to that charge be replaced by a substitute subcommittee member.
Rule X: Duties of members
4. It shall be the duty of members to report in writing to an appropriate Official any disciplinary offence or breach of Rule of which they have knowledge.
Rule XVII: Disciplinary procedures
1. All MU members have a duty to observe the Rules of the MU.
2. Disciplinary action may be taken against any member who does any of the following (including doing so as a member of a political party):
a. Disregards, disobeys or breaks any of the Rules or regulations of the MU applicable to them, or any instruction issued in accordance with the Rules;
b. Acts in a manner prejudicial or detrimental to the MU or their Region;
c. Commits:
(i) Any act of discrimination or harassment on grounds of age, colour, disability, marital status, race, religion, sex or sexual orientation; or,
(ii) Any other discriminatory conduct which is prejudicial to the objects of the MU set out at Rule I;
d. Misappropriates any money or property belonging to the MU which is under their control, or fails properly to account for money which was, is or should be under their control or defrauds the MU in any way;
e. Evades payment of the correct rate of subscriptions.
3. Disciplinary action may not be taken against a member where the conduct complained of consists solely of acting as an Officer or Official of the MU for or on behalf of or in accordance with the decision of a committee or other body of the MU.
4. Where a complaint of an alleged disciplinary offence is made to the General Secretary within 28 days of the alleged offence and there appear to the General Secretary to be reasonable grounds to think that a member might be guilty of a disciplinary offence the General Secretary shall investigate whether charges are justified.
5 It shall be open to the General Secretary to delegate all or part of the investigation to such person or persons as the General Secretary thinks fit.
6 The General Secretary shall consider the result of such investigation and consider whether there are reasonable grounds to think that a member might be guilty of a disciplinary offence and whether charges are justified and should be brought.
7. If the General Secretary considers that a charge (or charges) should be brought the General Secretary shall appoint an Assistant General Secretary (or other Official) to prepare and prosecute the case on behalf of the MU and a different Assistant General Secretary (or other Official) to act as secretary to the Disciplinary sub-committee appointed in accordance with Rule V.16.
8. A disciplinary charge shall be heard by the Disciplinary subcommittee of the EC appointed in accordance with Rule V.16.
9. Where the Disciplinary sub-committee considers a disciplinary charge is proved against a member, it may impose any one or more of the following penalties:
a. Censure of the member;
b. Debarring the member from attending any Delegate Conference and/or Regional meeting for whatever period it deems appropriate;
c. Debarring the member from holding any MU office for whatever period it deems appropriate;
d. Suspension of the member from all or any of the benefits of membership for whatever period it deems appropriate;
e. Suspension of the member from holding any MU office for whatever period it deems appropriate.
f. Expulsion of the member from the MU."
By Rule XVII-10 there is right of appeal to the Appeals Sub-Committee of the Executive Committee.
"17. …. All of the alleged incidents were reported to the Union more than 28 days after they had occurred. The Union regarded the complaints made about Mr Kelly to be very serious and decided that he could not do anything other than institute disciplinary proceedings against Mr Kelly"
"19. … whilst he was not working at the Union at that time, he understood that there was a period where several disciplinary complaints were made which were intended to, or had the effect of, destabilising the Union. Since the new Rules were adopted, in 2004, only two cases had been considered. The complaints against Mr Kelly were the first to be considered by the Union. When giving evidence, Mr Ashley told me that this was the first time the Union had considered the impact of Rule XVII-4"
"35. The wording reads, to me, very clearly that the General Secretary must pass forward all complaints where the two pre-conditions are met. There is no discretion and any reasonable Union Member would, in my view, read the rule in this way. The question, therefore, is whether in the absence of either or both of those criteria the reasonable Union Member would understand that, in the context of the wider Rules, the pre-condition which requires that the incident be reported within 28 days should be read only as guidance. Whilst I have sympathy with the Union, I cannot agree that a reasonable Union Member would read the Rule in this way. There is no lack of clarity around the wording of the Rule and no disciplinary route available where either, or both, of the preconditions are not met.
36. As Mr Reade expressed Rule XVII is a comprehensive and coherent framework for a disciplinary process which deals with members' obligations to comply with Rules and sets out a clear process from receipt to appeal. It is not unusual for a Union to have such a process and it is right that each stage should be set out clearly so that members affected, either as complainants or defendants, understand that process. It is not, in my view, inappropriate for such a process to have a time limit which prevents action against old or historic complaints. A 28 day time limit seems, however, surprisingly short and will, undoubtedly in my view, generate problems for the Union in dealing with many complaints. That does not mean, however, that the Rule should be ignored or treated as guidance.
…
44. I agree that there is no explicit restriction on the reporting period but, my reading of Rule XVII 4 is that it enables the Union to deal only with those complaints which meet its pre-conditions. That, in effect, prevents the Union from dealing with other complaints under its disciplinary process. I am not persuaded that the Union's lack of guidance on this point is sufficient to undermine my reading of the Rule. If I accepted that a lack of guidance to members enabled a Rule to be ignored then Unions could, should they choose to, ignore Rules simply by failing to draw them to the attention of their Members. That cannot be right. Similarly, it may be inconsistent to require Members to report all breaches when there is a limitation as to which complaints the Union can deal with. But that does not mean that the limitation has no effect; it may simply mean that the Union is aware of potential breaches which it cannot deal with through the disciplinary process."
"42. Although the wording is different both have the impact of removing the 28 day time limit thus undermining the impact of an express provision in the Rule. It is interesting to note, however, that one wording appears to relate only to serious misconduct. As far as I can see the Rules, as drafted, do not appear to provide a process for serious cases although, of course, the seriousness of an offence may be relevant when considering sanctions."
"40. … It is not for me to identify whether any of those would be relevant in this case but I agree with Mr Reade that the disciplinary process is not the only mechanism for dealing with allegations such as those faced by Mr Kelly. Nor should a limitation contained within the disciplinary scheme be seen as a barrier to the Union raising the issue in other ways…."
"65. … It would remain, of course, open to the Union to act on other information or for other reasons which have not formed part of this disciplinary action. I do not believe that it is within my remit to grant the wider Order which Mr Reade sought as, whilst in this case it was removed as a disciplinary sanction, the Approved Contractor relationship is not linked to Mr Kelly's Union membership…"
"(d). The Union must not remove Mr Kelly's Approved Musicians' Union Contractor Status… on the basis of any disciplinary or other Union process which arises from Mr Kelly's membership of the Union and which is based on information which was considered as part of the disciplinary process which began with the General Secretary's letter of 24 January 2018."
The Union's Submissions
"27 … that does not mean that the exercise of implication should be properly classified as part of the exercise of interpretation, let alone that it should be carried out at the same time as interpretation. When one is implying a term or a phrase, one is not construing words, as the words to be implied are ex hypothesi not there to be construed; and to speak of construing the contract as a whole, including the implied terms, is not helpful, not least because it begs the question as to what construction actually means in this context."
Construction
"…trade union rule books are not drafted by parliamentary draftsmen. Courts of law must resist the temptation to construe them as if they were; for that is not how they would be understood by the members who are the parties to the agreement of which the terms, or some of them, are set out in the rule book… Furthermore, it is not to be assumed, as in the case of a commercial contract which has been reduced into writing, that all the terms of the agreement are to be found in the rule book alone: particularly as respects the discretion conferred by the members upon committees or officials of the union as to the way in which they may act on the unions' behalf…."
"The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear."
Implied term
Mr Kelly's Response
Analysis and Conclusion
Construction
Implied Terms