EMPLOYMENT LEGISLATION
UNJUSTIFIABLE DISCIPLINE BY A
TRADE UNION (PL865 Rev 3)
Contents
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Introduction
Introduction
Union members have the right not to be unjustifiably
disciplined by their union. This right applies in addition to any other legal
right a member disciplined by his union might have. It gives members freedom to
make up their own minds whether or not to support industrial action, and
provides protection for members who seek to ensure that their union obeys the
law.
This document describes what is meant by discipline, when
discipline is unjustifiable, and how a complaint of unjustifiable discipline can
be made to an employment tribunal.
This document provides general guidance only. Authoritative
interpretations of the law can only be given by the courts.
The contents of this document apply equally to men and women.
For simplicity, however, the masculine pronoun is used throughout.
Section 1: What is meant by discipline?
An individual has been
disciplined by a union where one or more of the following penalties has been
imposed on him:
- expulsion from the union or from any branch or
section of it; or
- payment of a sum of money (for example, as a
fine) to the union, any branch or section of it, or to any other person; or
- treatment of his union subscriptions, or any
other payment he has made to the union or any branch or section of it, as
unpaid or paid for a different purpose (e.g. to pay a fine); or
- deprivation (even if only temporarily or in
limited circumstances) of any benefits, services or facilities which would
otherwise be available to him as a member.
An individual will also have
been disciplined if:
- another trade union, branch or section, is
encouraged or advised not to accept him as a member; or
- he is subjected or any other detriment or
disadvantage not listed above.
An individual is treated as having been disciplined by a
union not only where the decision to impose the penalty was made or purported to
be made under union rules but also where it was made:
- by an official of the union (for example, a
member of the executive, a trustee, or an elected shop steward); or
- by a group which includes an official of the
union.
Section 2: When is discipline
unjustifiable?
Not all union discipline is
unjustifiable. What matters is the conduct for which the individual is
disciplined.
The discipline will be
unjustifiable only if the reason, or one of the reasons, for which it is imposed
is conduct described in sections A to C below, or something that the union
believes to be such conduct.
A - Strike or other
industrial action
Discipline will be
unjustifiable if it is for:
- failing to take part in or support any
strike or other industrial action;
- showing opposition to, or lack of support for,
any strike or other industrial action;
- failing to break, for any purpose connected with
a strike or other industrial action, any obligation imposed by a contract of
employment or by any other agreement between the individual and the person for
whom he works;
- encouraging or assisting another person to honour
his contract of employment or other agreement with his employer.
The most common examples of conduct for which individuals are
protected against unjustifiable discipline are:
- going to work despite a call to take strike or
other industrial action (the individual is protected whether or not there has
been a ballot and whatever its outcome);
- crossing a picket line, including one mounted by
the individual's own union at his own place of work;
- speaking out against a call to take strike or
other industrial action;
- refusing to pay a levy to fund a strike or other
industrial action, including one described as compulsory, or imposed under
union rules.
B - Assertions
Discipline will be
unjustifiable if it is for:
- making an assertion that the union, any of its
officials, any trustee, or anyone else representing the union has broken or is
proposing to break any requirement imposed, or thought to be imposed, by the
union's rules, by any other agreement or by the law;
- encouraging or assisting another person to make,
defend or vindicate an assertion of the kind just described;
- consulting or seeking advice or assistance from
the Certification Officer;
- consulting or seeking advice or assistance from
any other person in connection with a matter which forms, or might form, the
subject matter of an assertion of the type described in this section.
The protection for making an assertion about a breach of
union rules or of the law applies whether or not it has been made in the context
of legal proceedings. Individuals will be protected against unjustifiable
discipline, therefore, if an assertion is made, for example, during a union
meeting or in a letter. Discipline will not be unjustifiable, however, if
the assertion was false and the individual making it, or helping another to do
so, believed the assertion to be false or otherwise acted in bad faith.
C - Further conduct for which discipline is unjustifiable
The remaining grounds on which union discipline is
unjustifiable are:
- refusing to comply with any penalty which has
been imposed following disciplinary action which was itself unjustifiable;
- refusing to allow union subscriptions to be paid
through the check-off;
- proposing to resign from the union, or joining or
refusing to join or resigning from a different union;
- working or proposing to work with people who are
not members of the union or who are or are not members of a different union;
- working or proposing to work for an employer who
employs (or has employed) people who are not members of the union or who are
or are not members of a different union;
- requiring the union to do anything which under
employment legislation, it is obliged to do on the request of a member;
- proposing to do any of the things listed in
sections A, B or C, or doing anything preparatory or incidental to doing any
of those things.
Individuals will, therefore, be protected against further
unjustifiable discipline if, for example, they refuse to pay a fine imposed on
them for working during a strike. Also, any discipline for proposing, for
example, to go to work during a dispute or to give evidence in good faith to
help someone else defend an assertion will be unjustifiable.
Conduct which is partly
protected and partly unprotected
Disciplinary action may not,
however, be unjustifiable if it is for unprotected conduct which formed a part
of conduct described above (and which therefore counts as protected). If the
union can distinguish between the two parts and show that individuals would be
disciplined for the unprotected part whether or not it took place in connection
with the protected conduct, then discipline for the unprotected conduct will not
be unjustifiable.
For example, a member who
made an assertion in good faith that a union had broken its own rules would be
protected against unjustifiable discipline, because that is conduct listed
above. However, if he made his assertion in a way not permitted by those rules -
for example by acting in a disruptive way at a union meeting - and the union
could show that individuals who acted in that way were always disciplined, then
disciplinary action for disruptiveness would not be unjustifiable.
Disciplinary action for
making the assertion itself, however, would be unjustifiable, even if members
had previously always been disciplined for making assertions.
Section 3: Making a complaint
How can a complaint be
made?
An individual who believes
he has been unjustifiably disciplined by a trade union may make a complaint to
an employment tribunal. This should be done within three months of the union's
disciplinary decision. Tribunals have discretion to extend this period only
where:
- they consider it was not reasonably practicable
for the complaint to be presented within three months, or
- any delay was due to a reasonable attempt by the
individual to appeal against the decision or to have it reconsidered by the
union:
An application form IT1, or in Scotland IT1 (Scot), should be
used. These, and an explanatory leaflet, How to apply to an employment
tribunal, can be obtained from Jobcentre Plus offices. The applicant should
send the completed form to the appropriate Tribunal Office (the application form
tells you which this is).
What happens next?
Conciliation
A copy of the application form is sent to the
Advisory, Conciliation and Arbitration Service (Acas). An Acas conciliator
will attempt to assist the parties to reach a voluntary settlement without the
need for a tribunal hearing if the parties concerned ask him to do so or if he
thinks that there is a reasonable chance of success. Conciliators can also
assist, at the request of any of the parties concerned, before a formal
complaint has been made to a tribunal.
Tribunal hearing
A union may have procedures for settling complaints made by
members. Where such procedures exist, individuals may wish to make use of them,
and an employment tribunal can extend the time limit for making an application
where such procedures have been used.
Voluntary procedures
If a voluntary settlement is not reached, or the application
is not withdrawn, the member's complaint of unjustifiable discipline will be
heard by the employment tribunal. The tribunal will then decide whether the
disciplinary action has infringed the right of the member not to be
unjustifiably disciplined.
If the tribunal finds the complaint of unjustifiable
discipline well-founded it will make a declaration to that effect.
This may be sufficient remedy in itself, particularly if the
union withdraws the disciplinary action. The individual has the right, however,
to make an application for compensation to be paid by the union and/or for an
order that the union pay to him the amount of any fine which he has paid but not
had refunded.
An application for compensation or for an order should be
made:
to an Employment tribunal.
The application will only be considered if it is made more
than four weeks but less than six months after the date of the tribunal's
declaration that disciplinary action was unjustifiable.
How much compensation can be paid?
The tribunal will award whatever compensation it considers
just and equitable in all the circumstances. Factors taken into account will
include, where appropriate, the individual's duty to reduce any financial loss,
and whether or not his conduct contributed to the disciplinary action. The
current maximum amount of compensation which may be awarded is £65,200.
Additionally, the amount of compensation payable will be not less than £6,100
where, on the date that the application was made to the Employment Tribunal, the
determination infringing the applicant’s right not to be unjustifiably
disciplined has not been revoked or where the union has failed to take all the
steps necessary for securing the reversal of anything done for the purpose of
giving effect to the determination. These figures are revised annually in line
with the retail prices index.
Appeals
An appeal can be made to the EAT on any question of law
arising from an employment tribunal's decision or the proceedings before it.
What if the discipline in question takes the form of
expulsion from the union?
In addition to the right not to be unjustifiably disciplined,
individuals have the right not to be excluded or expelled from a union for
permitted reasons defined in law, for example on grounds of geographical or
occupational limits on recruitment and conduct - but not the conduct described
in this document for which discipline would be unjustifiable. An individual who
is expelled from the union for any other reason may bring a complaint to an
employment tribunal, and may be awarded compensation.
An individual who is expelled from his union for conduct
described in this document may therefore have two rights of complaint: one under
the law relating to unjustifiable discipline, and one under the law on exclusion
or expulsion from a trade union. In this situation, the individual may make two
separate complaints to the employment tribunal, but if one of those complaints
is declared to be well-founded, he will not be able to proceed with the second.
Further information about
the right not to be excluded or expelled from a trade union may be found in
the document
Union membership: rights of members and non-members (PL 871).
Advisory, Conciliation and Arbitration Service
Other employment legislation publications
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