H Beckett v Unite the Union: 2209965/2023 and 2211392/2022
EMPLOYMENT TRIBUNALS
Case No 2209965/2023, 2211392/2022
Between
H BeckettClaimantUnite the UnionRespondentDate 9 September 2025
JUDGMENT
Upon the Claimant’s application and without a hearing:-[1]In the interests of justice, paragraph 3.a.2 of the reasons for the Deposit Order of 2 November 2023 are amended to the following: The Claimant relies on section 64(2)d) that he was deprived of a benefit (funded legal support for employment claims) which would otherwise be provided or made available to him by virtue of his membership of the Respondent trade union had he not made an assertion pursuant to section 65(2)(c). However, whether or not an assertion was made, there is little reasonable prospect of a finding that such a benefit is “otherwise available” (or was believed to be available) for external funding by the Respondent for independent legal support to bring an employment claim against the Respondent. Accordingly, there is little prospects of a finding that the Claimant would have “otherwise” been entitled to the benefit sought.[2]The application to reconsider is otherwise refused. .
REASONS
[1]This decision has been made by the Employment Judge without a hearing, in accordance with rule 72(1).
Background
[2]There was a video (CVP) preliminary hearing on 5 and 6 October 2023 in the London Central Employment Tribunal (the “PH”), at which I made a deposit order (the “Deposit Order”). Full reasons were given orally at the hearing, with summary reasons for the purpose of the Deposit Order issued on 2 November 2023.[3]At the start of the PH, prior to hearing the submissions, I explained to the parties that I had read the documents (or parts of the documents) referred to in their submissions, along with the pleadings, case management orders and statements, but that I had not read the whole Bundle or full copy documents annexed to the Claimant's statement. It was agreed that I need not do so and I would be taken to such documentation as considered necessary by the parties. I acknowledged that I was helpfully assisted by Counsel for each party, both by their written submissions and in oral submissions.[4]A deposit order was issued in respect of the Claimant’s claim for unjustified discipline pursuant to section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). This related to the refusal by the Respondent to provide funded legal support for the Claimant’s claims against the Respondent. The summary reasons, as set out in the Judgment in respect of the Deposit Order, were as follows: There is little prospect of the Claimant’s claim for unjustified discipline succeeding: 1) in circumstances where on the face of the documentation: i) the refusal was because decision maker believed that the Respondent would not fund employment litigation against itself; ii) The Claimant had also adopted the same position in respect of employment claims against the union in his tenure as a senior employee of the union; and/or 2) The Claimant relies on section 64(2)d) that he was deprived of a benefit (funded legal support for employment claims) which would otherwise be provided or made available to him by virtue of his membership of the Respondent trade union had he not made an assertion pursuant to section 65(2)(c). However, whether or not an assertion was made, no benefit is available (or was believed to be available) for external funding for independent legal support to bring an employment claim against the Respondent. Accordingly, there is little prospects of a finding that the Claimant would have “otherwise” been entitled to the benefit sought.[5]A deposit order was issued in respect of the Claimant’s claim for victimisation pursuant to section 146 TULRCA. This also related to the refusal by the Respondent to provide funded legal support for the Claimant’s claims against the Respondent. The summary reasons, as set out in the Judgment in respect of the Deposit Order, were as follows: There is little prospect of the Claimant’s claim … pursuant to section 146 [succeeding] where, on the face of the documentation; i) Whether or not decision makers in the Claimant's case were correct that the Respondent would not fund employment claims against itself, the refusal was because the decision maker believed that the Respondent would not fund employment litigation against itself; ii) The Claimant had also adopted the same position in respect of employment claims against the union in his tenure as a senior employee of the union; those decision makers considered this to be the case, and the Claimant himself had previously adopted the same position in relation to funding for employment claims against the Respondent.[6]The Claimant had opportunity to make submissions on his ability to pay, agreed that he was able to pay the deposit and that the issuing of a deposit order would not be a bar to proceedings continuing.[7]Written reasons were not requested, but the Claimant, through his solicitors, has applied for reconsideration of the decision to make the Deposit Order by emails of 17 November 2023 and 25 January 2023.[8]The parties have both had further opportunity to comment, and they have agreed that this matter can be dealt with without a hearing. The interests of justice do not require a hearing.[9]Legal experts hold different views about whether a decision to make or not to make a deposit order is, technically, a judgment or an order; and therefore about whether it is possible to apply for reconsideration of such a decision (because only judgments can be reconsidered). I take the view that such a decision is a judgment. It is, anyway, possible to apply to set aside or vary a Tribunal order under rule 29. If a deposit order decision is in fact an order and not a judgment, this should be treated as my decision on an application to set aside or vary under that rule. Application for reconsideration[10]The Claimant asserts that the “interests of justice would only be properly served by the Tribunal hearing evidence … and thereafter making full findings of fact”. In considering the Claimant’s application and the further representations of the parties, I am mindful that no findings of fact have been made on the disputed evidence in this case. That is a matter for the final hearing, and it remains so notwithstanding the Deposit Order. Whether or not the Deposit Order is amended, set aside or not, the Claimant is able to put forward evidence for the Tribunal to consider at final hearing.[11]The Claimant’s application for reconsideration focuses on the following (by way of very brief summary for the purposes of ease of reference):a. The evidence that the benefit sought by the Claimant (his “Paid Legal Costs”) would never be paid by the Respondent was based on one piece of litigation some years prior, which the Claimant says is only one relevant consideration.b. The Respondent’s (and indeed the Claimant’s) approach in the previous “Reuby” litigation may have been different to their approach some years later. The Claimant further submitted an email from an individual who says that the Respondent authorised payment of her legal fees in litigation against the Respondent.c. There may be more than one reason for the refusal of the Paid Legal Costs, which is accounted for in TULRCA.d. A determination that “the decision-maker ‘believed that the Respondent would not fund employment litigation against itself’” was made without witness evidence having been tested.e. The Tribunal had been “drawn into a finding of fact on matters which were not subject to any direct evidence”.
Law
[12]By Rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider a Judgment where it is necessary in the interests of justice to do so. On reconsideration, the Judgment may be confirmed, varied or revoked.[13]An application for reconsideration shall be presented in writing (and copied to all of the other parties) within 14 days of the date upon which the written record (in this case the written record being the Judgment promulgated on 2 November 2023) was[14]Under Rule 70, a Judgment will only be reconsidered where it is necessary in the interests of justice to do so. This allows an Employment Tribunal a broad discretion to determine whether reconsideration of a Judgment is appropriate in the circumstances. The discretion must be exercised judicially having regard to the interests of both parties, the public interest and the interests of justice.[15]When deciding what is “necessary in the interests of justice”, it is important to have regard to the overriding objective to deal with cases fairly and justly, which includes: ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the complexity and importance of the issues; avoiding unnecessary formality and seeking flexibility in the proceedings; avoiding delay, so far as compatible with proper consideration of the issues; and saving expense.[16]There must be some basis for reconsideration. It is insufficient for an applicant to apply simply because the party applying disagrees with the decision. For example, new evidence that was not previously available may form a basis for reconsideration.[17]Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust KEAT/0002/16/DA. Paragraphs 34 and 35 provide as follows: “34. […] a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. 35. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[18]This principle was further discussed in the case of Ebury Partners UK Ltd v Acton Davis [2023] EAT 40. HHJ Shanks held at para 24 that “A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a ‘second bite of the cherry’ and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT”.
Discussion and conclusions
[19]By reference to the brief summary of the Claimant’s application above (but having considered the Claimant’s and the Respondent’s correspondence in its entirety):[20]In relation to points a and b, the Claimant has not raised new evidence that changes the summary assessment previously made. Submissions were made at the PH in relation to the ARAG Legal Expenses Insurance policy and its relevance (or otherwise) to this Claim. It was expressly acknowledged at the PH and in the full reasons given for making the Deposit Order that the Reuby litigation did not involve a claim for unjustified discipline. It was also acknowledged that the Claimant does not now agree with the position adopted in the Reuby litigation, but that his position in that case was that he had “never authorised legal assistance for a member to pursue an employment tribunal claim against” the union. The Claimant’s senior position in the union was not disputed. This was not a case about legal expenses insurance (LEI). The new evidence (email of 16 December 2023) refers to legal cases and fees being underwritten by LEI. The issue as put to the Tribunal at the PH was that LEI is available (subject to the terms of the specific policy) for employees, an unjustified discipline claim is based on the Claimant’s status as a member of the union. The Tribunal was taken to various email correspondence relevant to the matter, and the evidence and submissions considered was not limited to evidence and submissions in respect of the Reuby case.[21]However, no finding of fact was made that the Paid Legal Costs sought by the Claimant would never be paid. On review of the summary reasons set out in the Judgment dated 2 November 2023, to ensure that it is clear that no findings of fact were made on this issue, such that would bind a future Tribunal in making its findings of fact, paragraph 3.a.2 of the summary reasons in the Judgment are hereby amended in the interests of justice to the following: 2) The Claimant relies on section 64(2)d) that he was deprived of a benefit (funded legal support for employment claims) which would otherwise be provided or made available to him by virtue of his membership of the Respondent trade union had he not made an assertion pursuant to section 65(2)(c). However, whether or not an assertion was made, there is little reasonable prospect of a finding that such a benefit is “otherwise available” (or was believed to be available) for external funding by the Respondent for independent legal support to bring an employment claim against the Respondent. Accordingly, there is little prospects of a finding that the Claimant would have “otherwise” been entitled to the benefit sought.[22]In relation to point c, the tests under sections 64 and 65 TULRCA were considered at the PH.[23]In relation to points d and e above, and as previously noted, no findings of fact were made as to the motives of the decision makers. No live witness evidence was heard, as agreed with the parties, and a summary assessment of the documentary evidence was made, including a summary assessment of potential credibility findings. No binding findings of fact were made. The parties will recall that credibility was expressly referred to in the full reasons given at the PH, acknowledging that credibility issues will be a matter for the final hearing, but that on the face of the papers the Claimant had previously adopted the same position as the Respondent (in respect of Paid Legal Costs) in circumstances where, on his own evidence and on the face of the papers, the Claimant was familiar with the Rules of the trade union and indeed the legal framework within which trade unions operate.[24]For the avoidance of doubt, and as the parties will be aware, the emails and letters from the Respondent to the Claimant refusing the Paid Legal Costs were expressly drawn to the attention of the Tribunal. They were considered. As set out above, the Tribunal set out for the parties what documents had been read prior to the commencement of the hearing. The parties agreed that they would take me to such documentation as they each considered necessary. This was also made clear in giving the full reasons at the PH.[25]The effect of the Deposit Order is that(i) the Claimant has to pay a deposit to continue with the claim that is subject to the Deposit Order and(ii) if the Claimant loses for reasons as set out in the Deposit Order, he will lose the deposit and there may be costs consequences (subject to Rule 39(5) of the Employment Tribunals Rules). For the avoidance of doubt, the reasons set out in respect of the Deposit Order do not bind the Employment Tribunal at final hearing, save insofar as Rule 39(5) comes into play on conclusion of the final hearing.[26]The parties had a fair and proper opportunity to present their cases at the PH. The application attempts to re-argue that which I have already considered and decided. The Deposit Order did not prevent the Claimant from pursuing his Claims – it was agreed that it was set at a level that enabled him to do so.[27]Save to the extent referred to at paragraph 21 above, the Claimant’s application is therefore refused.
Discussion and conclusions
[1]The unanimous judgment of the Tribunal is that the claims pursuant to sections 64 and 146 of the Trade Union Labour Relations (Consolidation) Act 1992 (TULCRA) fail and are dismissed. This The claim for constructive unfair dismissal fails and is dismissed.[2]Oral reasons were given on 9 July 2024. The respondent subsequently requested written reasons. As explained to the parties the substance of these written reasons reflects the oral reasons given save that those sections concerning the relevant legislation and case law are expanded and non-material changes are made for consistency, chronological consistency, to correct any inadvertent omissions and otherwise for ease of reading.
The Hearing
[3]The hearing took place over 11 days, an additional day having been added to enable the Tribunal to conclude its deliberations and give an oral judgment at the request of the parties. 1 of 32[4]At the commencement of the hearing an application was made by the respondent made for the anonymity order to be lifted. The Tribunal unanimously decided that it would be inappropriate for anonymity to persist and therefore from that point onwards the parties have been referred to by their non-anonymised names.[5]There was an agreed bundle of circa 2300 pages with some additional documents being added during the hearing.[6]The Claimant gave evidence and Mr Len McCluskey, the former General Secretary of the Respondent, gave evidence on his behalf. Gail Cartmail who was most recently Executive Head of Operations, (Ms Cartmail), Sarah Carpenter, who was most recently Executive Head of Operations and previously Regional Secretary of the South East, (Ms Carpenter), Barbara Kielim, Director of HR Training and Development (Ms Kielim), and Simon Cox, who most recently was Senior Advisor to Sharon Graham the General Secretary of the Respondent, (Mr Cox) gave evidence on behalf of the respondent. The Parties The Claimant[7]The Claimant has been a solicitor for approximately 30 years. He part owned a firm of solicitors on the Wirral which he sold prior to joining the Respondent on 1 June 2021 as Executive Director of Legal Membership and Affiliated Services. His job description listed the principal functions of his role which included developing relationships with external providers of affiliated membership services to the Union, advising on and assisting in developing new income streams, assisting in the further development of the Union’s brand and the recruitment and retention of members. The Respondent[8]The Respondent is the UK’s largest trade Union (variously referred to as the Respondent, Unite or the Union). It has grown following a series of mergers most recently with Amicus and has in excess of 1 million members with approximately 1000 shop stewards. Relevant documents Rule Book[9]The Respondent has a Rule Book that includes provisions regarding the circumstances in which the Union will provide legal assistance. Paragraph 4.6.3 provides: A member who requires advice and/or representation on a problem relating to the member’s employment which first arose at a time when the member was entitled to benefit and which cannot be resolved through the member’s work place representatives should refer the matter to the appropriate Regional Officer. The Union may provide such advice and/or representation as the Executive Council shall consider appropriate, whether by a full time officer or otherwise, and on such terms as the Executive Council shall consider appropriate. 2 of 32 Benefits Policy and Guidance effective from 1 November 2022[10]Rule 5 (e) provides: Members are afforded legal assistance in accordance with Rule 4.6 and the determinations of the Executive Council made pursuant to the Rule. The provision of legal services the level at which it is afforded and the selection of any of any provider is at the discretion of the Executive Council. Disciplinary procedure[11]Clause 6.1 includes a power of suspension where an employee is accused of gross misconduct. Internal employee disciplinary investigations[12]The policy on internal employee disciplinary investigations provides that if the police are carrying out a criminal investigation into a matter that is also the subject of an internal disciplinary investigation, the Union needs to be careful that its investigation does not prejudice or disrupt the police proceedings. Absence management policy[13]This provides at clause 2.5 that a fit note is required on the 8th day of continuous absence, including the weekend, and should be submitted to the HR Department on the day of receipt. Declaration of interests[14]At the Executive Council between 6-9 June 2022 the General Secretary highlighted that the policy on the declaration of interest and register of gifts (the Declaration of Interests Policy) had been circulated to the Council and would be discussed later that day. The Declaration of Interests Policy, which the Tribunal was told was effective from June 2022 (page 2232 onwards in the bundle), includes at section 4.3 that any individual with a conflict of interest relating to a financial decision, must declare it as soon as the conflict arises, and must excuse themselves from any voting or decision making on that matter, preferably in advance of the discussion or meeting taking place. Section 4.6 provides that at inception of the Declaration of Interests Policy all existing Union employers should make a full written disclosure of any interest which could appear to be a conflict of interest.[15]The Tribunal heard evidence that most incidences of disclosures pursuant to the Declaration of Interests Policy concerned minor matters such as Christmas gifts, bottles of wine, food hampers, et cetera. Organigram[16]It shows various Assistant General Secretaries, one of whom was the Claimant following his promotion to Assistant General Secretary with effect from 5 December 2016, as reporting to the General Secretary. There is also a Chief of Staff reporting directly into the General Secretary, who at the material time was Andrew Murray (Mr Murray). 3 of 32 Explanatory note regarding judgment sequence[17]Whilst I set things out largely chronologically it will assist ease of understanding to set out certain matters thematically to include that pertaining to the provision of legal assistance. Legal assistance for Union members[18]The Tribunal was referred to an employment tribunal case, the Rueby case, in which the Claimant had given a witness statement. We were referred to the recollections of Stuart Brittenden of Old Square Chambers, the respondent’s instructed barrister. His note of the consultation included:• Common sense point, member subs used for legal support.• Would not use members subs to sue Union.[19]The Claimant’s witness statement in Rueby stated interalia: a) at paragraph 3 that legal assistance is discretionary; b) at paragraph 10 that I would make the same decision for any member with the only exceptional circumstance in which I authorise the provision of legal assistance from a non-panel firm to sue Unite being if it is a personal injury claim for which the Union has employer or public liability insurance; c) at paragraph 11 I have never authorised legal assistance for a member to pursue an Employment Tribunal claim against Unite and I treated Mr Rueby in the same; and d) at paragraph 16 if Ms Kielm had responded to Mr Rueby she would have advised him that legal assistance would not be provided as there was a conflict of interest and we do not provide legal assistance where an individual is seeking to sue ourselves. Email from the Claimant to Mr McCluskey of 16 June 2017[20]The Claimant confirmed that the union had legal expense insurance in place to cover officers and staff who are Unite members and they can receive legal advice as to whether they have an action against Unite under the terms of this insurance without having to go through our panel first.[21]Mr McCluskey said there was a perceived dichotomy between the position of Unite employee who were members of Unite and those who were members of another union, for example the GMB, who would have a potential ability to otherwise pursue a claim against Unite. The ARAG policy[22]The insurance policy for such claims was initially provided by DAS but subsequently ARAG. The ARAG policy covers employment disputes such as unfair dismissal or redundancy claims. The section on insured events refers to a dispute with the insured’s 4 of 32 current, former or prospective employer relating to their contract of employment or related legal rights. The beneficiary can claim under the policy as soon as the internal procedures as set out in the ACAS Code of Practice for Disciplinary and Grievance Procedures have been or ought to have been concluded. Edwards v Unite and others (case numbers 2205756/2018 and 2401913/2019)[23]Mr Williams referred the Tribunal to the very long judgment of the Manchester Employment Tribunal in Edwards v Unite and others. This included at paragraph 118 which the Claimant saying that a case enjoyed merit, then regardless of the respondent they would support it, it did not contain a conclusive statement as to the Respondent’s position regarding such claims.[24]The Tribunal was also referred to the position of a Unite employee in the Republic of Ireland who had potentially been entitled to benefit of the insurance but where ultimately it was not provided given that the internal procedures had not been exhausted. Press coverage pertaining to the Respondent[25]There has been substantial press coverage regarding Unite. The Tribunal is very mindful of what is relevant for its determinations, but nevertheless it is impossible to draw a line of complete demarcation between the wider press coverage on issues concerning Unite and the specific allegations pertaining to the Claimant. The Times[26]The Tribunal was referred to an article from the Times on 16 January 2021 which included detailed contentions of potential conflicts of interest relating to the Respondent’s Birmingham Hotel project and the award of contracts to the Flanagan Group, a Liverpool based company. The article suggested that there were inappropriate and improper tendering processes for the award of those contracts. The Times editorial of the same date had an article entitled “crony socialism”.[27]There was an article more specific to the Claimant in the Times on 19 February 2021 which stated that Unite promotes financial services run by friends of Len McCluskey and specifically referred to the roles of former colleagues of the Claimant, Mr Bemrose in relation to Home Services and Ms Lonsdale in relation to Your Tax Refund. It stated that both companies operated from premises owned jointly by the Claimant at Eastham Hall on the Wirral.[28]A statement given by the Claimant on behalf of the Respondent said that Home Services and Your Tax Refund were two of about 50 companies and organisations endorsed by the Union. A spokesman said that Mr Beckett does not have any involvement whatsoever in the process of vetting and selecting these companies nor negotiating terms and conditions. He received no income from the companies for use of Eastham Hall and does not, and never had, any personal financial interest in either firm. In response to questions Mr McCluskey said that this was wrong. The Guardian 5 of 32[29]There were similar articles in the Guardian, in particular, 26 January 2021 referring to Operation Aloft which was an inquiry into the sale to developers of council owned land in Liverpool but also making a connection with the Birmingham Project.[30]There was a further article in the Guardian on 18 June 2021 recording the fact Mr Beckett had pulled out of the leadership campaign for the new General Secretary’s position. The position of General Secretary[31]General Secretaries serve a five year term. Mr McCluskey had served two terms with his second term extended because of Covid and what would have been the 2020 election being deferred until 2021.[32]The Claimant obtained the requisite number of nominations to be on the ballot. However, to avoid splitting the vote for the left leaning candidates he pulled out in advance of the election. Sharon Graham (Ms Graham) stood on a manifesto (page 245 in the bundle) focusing on the industrial role of the Union. She wanted to distance the Union from the internal politics of the Labour Party and stated that “there would be no more blank cheques for the Labour Party and that we need to do more than Westminster elections”. She was ultimately the successful candidate. Ms Graham commenced as General Secretary on 26 August 2021. The Claimant’s sickness absence[33]On Ms Graham commencing as General Secretary the Claimant immediately went off sick with stress and only returned for a short period before going on long term sick leave with effect from 11 October 2021 which continued until his resignation on 12 January 2023. Internal restructure and effect on the Claimant’s position[34]The Claimant was advised that there would be an ongoing restructure and that he would no longer be covering political. This was recorded in an email from Ms Graham of 20 September 2021. She stated that Rob Macgregor would cover political in the interim as Unite finalised the structure going forward. This was explained on the basis that Ms Graham wanted to move focus from a civil war within the Labour Party to focus on jobs and the workplace. Ms Graham did not give evidence[35]It is significant that Ms Graham did not give evidence so much of the evidence as to her motivations and intentions was one step removed from other witnesses and particularly Mr Cox. Without prejudice settlement negotiations[36]The Claimant then initiated a without prejudice process which the parties anticipated would result in his consensual departure. That was referred to in an email from him to Ms Graham on 22 September 2021 and there were then quite protracted discussions. It 6 of 32 gradually became apparent that the Claimant either was unhappy with the financial terms, or maybe was reconsidering whether he wished to leave in principle, so for example on 9 October 2021 he sent a WhatsApp message to Ms Graham saying: “I’ve not told anyone I am leaving this is a massive decision and I am going to take it in my time”. It is apparent from her subsequent message in which she stated: “It’s been weeks you came to me to ask to leave, you have spoken with Andrew and Len, I need to move things on it is now detrimental to the members” that she was becoming increasingly exasperated. The claimant responded by saying that the proposed separation had come about because of the fact that he was moved from politics. Ms Graham responded by saying: “We have to put a deadline on this I am refocussing the Union and of course I am moving people into the roles they need to focus on that includes legal. You have been aware of the political change since the beginning of last month, you made the decision to go as a result”. Email from the Claimant to Mr Murray of 10 October 2021[37]The Claimant advised Mr Murray that he was taking time off for ill health. He refers to the treatment he has received from Ms Graham since the election and said that his mental health not good. He went on to say that there were many issues forcing his exit not least the change in his role, in particular politics being taken from him in such a public manner immediately before the Labour Party conference at a time when “political” reasons had resulted in his suspension by the Labour Party when he had advocated the position of Unite as mandated by the Executive Council. . The Claimant had been suspended from the Labour Party as a result a tweet he had sent regarding Priti Patel and the issues regarding deportations. Ultimately that matter was referred to the Law Society but no action was taken against the Claimant and therefore is not a relevant issue for this Tribunal.[38]The Claimant advised Mr Murray that he would be submitting a grievance. The Claimant’s role within the Labour Party[39]The Claimant had a significant role within the Labour Party being one of two Unite members mandated to sit on the National Executive Council (the NEC). He was part of a left leaning block supportive of Jeremy Corbyn and opposed to Keir Stammer. Temporary cover for the Claimant’s roles[40]It became apparent that the Claimant that was not leaving pursuant to a settlement agreement. However, despite the fact that the Claimant was off sick no permanent appointments were made to cover his roles. There was temporary cover as illustrated by an email from Janet Henney to Ms Cartmail of 11 February 2022 and an email from Ms Graham to Mr Cox of 14 February 2022 in which she said we have not yet discussed with anyone Mr Beckett coming back so it seems odd to move, I have no issue with it, we would need to speak to Jane and Cliff to see if ok. If Mr Beckett comes back we may be leave. That is inconsistent with the Claimant’s contention that there was no possibility of his returning. The Claimant’s attempted return to active employment[41]The Claimant sought to return to active employment in February 2022 but there was a requirement for him to provide a fit for work certificate. There was a misunderstanding 7 of 32 by the Respondent regarding fit notes which rather confusingly are quite the opposite, in other words certification of sickness as opposed to a certificate from a GP that someone is fit to work. This undoubtedly caused a degree of confusion. Nevertheless the Claimant had not provided, in contravention of the Respondent’s sickness absence policy, fitness for work certificates during his absence. He and his lawyer argued that as a senior employee he that should not be required to comply with the policy in this regard, but it was made clear to him by Ms Cartmail and others, that the request for a statement of fitness to work is a requirement that applies to all employees up to and including Assistant General Secretaries. The Claimant did provide statements of fitness for work in March and April 2022 which referred to work related exhaustion and need for rest and recuperation and on 29 April 2022 he was signed off for a further three months. The criminal investigation pertaining to the Claimant[42]A search warrant was obtained by South Wales Police from Southwark Crown Court which resulted in searches being undertaken at the Respondent’s Theobalds House Head Office and at the Claimant’s flat in London and home on the Wirral on 6 April 2022. The search of the Claimant’s office at Theobalds House was undertaken by plain clothes officers so it was as discreet as possible but nevertheless was understandably seen by the Respondent as a very concerning and serious issue. The search warrant (in the bundle at page 511 onwards) referred to the relevant period for all material as being from the start of the tendering process or pre-contract or pre-contract negotiations. The Claimant was one of four suspects the other three names being redacted. Email from Ms Goodwin of 7 April 2022[43]An email was sent by Lynne Goodwin to all Executive Committee members, officers, staff and organisers on 7 April 2022 in which she said that in relation to the media report attached and others similar please be advised that the South Wales Police attended Holborn on 6 April to exercise a warrant related to an employee of the Union. The Union was understandably concerned to avoid the perception that it related more generically to Union activities. Mr McCluskey said he would have preferred it to have been much more specific that it had nothing to do with the Birmingham Project. It was apparent from Mr McCluskey’s evidence that he was, possibly understandably, defensive about the criticism of the Birmingham Project and the escalating costs. The Birmingham Project[44]The Birmingham Project was a flagship policy initiated by Mr McCluskey in 2015. It had an estimated initial cost of circa £7 million but by its completion total costs exceeded £100 million. This obviously gave rise to significant concerns. Special Executive Council meeting on 29 January 2021[45]A special Executive Council meeting was called on 29 January 2021 to discuss these concerns. The General Secretary reported to the Council on the background to the Union’s property development. He is recorded as deploring recent malicious and inaccurate press reporting as being designed to smear the Union. The Claimant and Mr McCluskey consistently referred in disparaging terms to critical press coverage as being that of the Murdoch or right wing media seeking to worse smear the Union. When I pointed out to Mr 8 of 32 McCluskey that some of the coverage was in the Guardian he responded by saying there were certain Guardian journalists who also had an agenda.[46]At this meeting the Claimant presented a detailed report on the Birmingham Project. The Claimant advised the Council that the Birmingham project has been valued at the cost of construction making it a sound investment for the Union. The Claimant had responsibility for the financial issues of the Birmingham Project on being appointed as Interim Finance Director following the unexpected death of the Ed Sabisky, Executive Director, Finance, Property and Pensions (Mr Sabisky) on 1 March 2020. It was surprising that he remained in post as Interim Finance Director for such a long time as he does not have accounting experience. Mr McCluskey’s evidence was that the tragic nature of Mr Sabisky’s death, who was a close personal friend, meant that he was unable to focus at that time on a permanent appointment particularly given that a General Secretary election was impending.[47]The Claimant gave a series of reasons why additional costs had been incurred to include an extra floor having been added, additional sprinklers post the Grenfell fire, an increase from 3 to 4 star rating, building inflation costs being particularly high in Birmingham and the Unite protocol (which involves contractor firms paying above the minimum wage at circa £11.50 per hour).[48]He said that if a formal valuation had been obtained it would inevitably have been used in a pejorative way by the “right wing media” to attack the Union. He provided examples of other hotels, and we do not need to go into detail of these, namely the Starwood Capital Renaissance Manchester and the Hilton Birmingham Metropole and their values. The Respondent says they were not appropriate comparators. Independent valuation of the Birmingham Project[49]Ultimately an independent valuation was obtained from Fleurets. In their valuation of 8 December 2021 they said that the market value of the Birmingham Project and Conference Centre was £29 million. That came as a shock to Ms Graham and others given that the build costs were substantially in excess of that figure. Mr Bowdrey QC instructed by the Respondent[50]As a result of these concerns Martin Bowdrey QC was instructed to prepare a report on 13 January 2022. He produced an interim report, the Tribunal has not seen the final report, which is heavily redacted. It refers to a figure of circa £14 million ascribed to CI 232, which is the Unite protocol, as not featuring in the final accounts and it remaining a mystery as to how and when this figure had been assessed and then presumably paid to Flanagans. The disciplinary process pertaining to the Claimant[51]The disciplinary process commenced after the police search of Unite’s premises on 6 April 2022. An email from Ms Cartmail to Mr Cox on 28 April 2022 refers to the Claimant’s cautionary suspension and investigation in relation to the following areas: 9 of 32• Initial interim report findings of the QC lead enquiry into the Birmingham Project and Conference Centre. Initial findings are that the report you gave to the Executive Council at the Special Executive Council in January 2021 was misleading on finances and spend, reported value based on incomparable hotels and a valuation figure.• Signing a seven year contract with Hardy Evans without prior authority. The Claimant was not suspended at this point as he remained off work on sick leave. The Claimant’s email to Ms Graham of 13 June 2022[52]In an email to Ms Graham of 13 June 2022 the Claimant referred to coverage regarding the police warrant being issued. Further, he highlighted what he considered to be the considerable financial benefit the Hardy Evans relationship had provided to the Union and or generally that relationships he had established that the provision of affiliated services to the Union had been generated millions of pounds of revenue. He said that the commentary was intended to traduce his reputation and that he was not feeling a great deal of support from the Union. The Claimant’s suspension on 3 August 2022[53]It was not until the 3 August 2022, at a time when he was seeking to return to active service, that the Claimant was suspended. A letter was sent by Ms Cartmail advising him that he was suspended with immediate effect because of two specific allegations namely:• Misleading the Executive Council in reporting the Birmingham project valuation and false comparisons.• Concerns about the probity of awarding contracts for affiliated services. He was advised that his email account had been suspended.[54]Ms Cartmail said that she had drafted the letter of suspension as early as 28 April 2022 and it was had in abeyance given the Claimant’s ill health. Mr Pike and Sky News[55]It is apparent that this letter of suspension, along with other matters pertaining to the Claimant and the ongoing disciplinary process, found their way to Mr Pike of Sky News. Ms Cartmail says that she carefully controlled access to this and other relevant documents. The Claimant’s email to Ms Cartmail of 4 August 2022[56]The Claimant referred to his being subject to victimisation that comes after other acts of victimisation. He said it was because he had stood in the General Secretary election and did not support Ms Graham and that he was perceived as a threat to her. Letter from Harvard Law dated 12 August 2022 10 of 32[57]Harvard Law referred to a claim of victimisation against Unite and they requested payment of the Claimant’s reasonable legal costs for them to provide necessary representation. Ms Cartmail’s response of 18 August 2022[58]In a response from Ms Cartmail on 18 August 2022, she said that the Claimant was not automatically entitled to legal representation paid for by Unite as provision of legal representation a discretionary benefit of membership. She said that Unite does not cover legal costs to members or employees in circumstances where they are seeking to litigate against Unite as this clearly represents a conflict of interest. Ms Carpenter’s investigation[59]Ms Carpenter was appointed to carry out an investigation. She interviewed a number of people including Mr Cox on 9 September 2022. He stated that he believed that the Claimant had mislead the Executive Council about the value of the Birmingham assets. Mr Cox was not in attendance at the special Executive Council in January 2022. Ms Carpenter says that it would have been apparent to her that he was merely reporting what he had been told rather than what he had heard. He advised Ms Carpenter that he had been told by Monica Sorice, Simeon Jones and Tom Murphy, the Directors of Blackhorse, that they had asked the Claimant for a valuation but to no avail. Mr Cox asserted that he could not think of any justification for including information on the “comparable” hotel values other than to suggest that the Birmingham Project is a similarly valuable asset which he said was not true. He referred to the police having found payments of £1.1 million from a company owned by Frank Harold to the Claimant from 2012-2015. He said that Ms Carpenter would need to ask the Claimant how Mr Harold benefitted financially from Unite. He also made reference to Kate Lonsdale and Klass Accountants and how she runs the Unite Benevolent Fund. He subsequently updated the minutes of note of his conversation with Ms Carpenter to include additional material which related largely to the police investigation so, for example, he added reference to the South Wales Police alleging or investigating suspected bribery, money laundering and fraud. The Respondent’s approach to the South Wales police investigation[60]The Respondent sought to distance themselves from the South Wales Police investigation. This included a statement given by Mr Cox on 15 September 2022 which referred to Unite being a victim and the Claimant as being suspected of committing serious crimes over a period of many years including inter alia bribery, money laundering and fraud. He went on to state that given the specific and serious nature of these matters it is unthinkable to him that the Claimant could continue as a senior employee of Untie without having satisfactorily answered all the allegations in full and explained the payments he received. He referred to there being a number of red flags which indicate that the Claimant might have other inappropriate connections with affiliated service providers, that he signed onerous affiliated service provider contracts without approval of the General Secretary and that he may have been untruthful about his role in awarding such contracts in the past. Mr McCluskey and Ms Carpenter’s investigation 11 of 32[61]Mr McCluskey repeatedly stated that he was available to be interviewed by Ms Carpenter. She did not avail herself of his offer. The Tribunal finds that surprising given that the Claimant repeatedly stated that Mr McCluskey was aware of all contracts entered into and was the primary person responsible for the Birmingham Project. No explanation was given as to why he would not be an appropriate witness. Ultimately Mr McCluskey provided a statement. Emma Gibbons[62]Others interviewed included Emma Gibbons, the new Director of Finance, who stated that she had not seen any payments coming back pursuant to the Hardy Evans contract. The Claimant’s meeting with Ms Carpenter on 17 October 2022[63]The Claimant attended an investigation meeting with Mr Carpenter on 17 October 2022 at Friends House, Euston. He was represented by Mike Eatwell of ONC. He was asked a series of questions regarding both misleading the Executive Council in respect of the Birmingham Project this and Conference Centre and the probity of affiliated services contracts.[64]He stated at paragraph 9 that Mr McCluskey had volunteered to be interviewed as part of the investigation and he saw it as a witch hunt. At paragraph 10 he advised that the presentation given to the Special Executive Council meeting had not been prepared by him and had been put together by Purple Apple for Mr McCluskey and Mr Murray who agreed it should be reported to the EC. At paragraph 44 he said that the previous General Secretary was aware of everything. At paragraph 62 he referred to various issues having been reported in the Times in 2015 and therefore they were all in open sight. He said at paragraph 63 that this would end in litigation for victimisation and that Ms Carpenter would be complicit. Ms Carpenter at paragraph 66 asked the Claimant if there was a conflict of interest with his role in Unite to which he said no.[65]At paragraph 68 he was asked questions about payments received and at that point he discontinued the interview. He contends that it was a PACE interview by proxy and that he believed that Ms Carpenter, either directly or by Mr Cox, was being primed with questions from the South Wales Police. The Tribunal finds no evidence for that but will revert to the general nature of the questions later.[66]Ms Carpenter states at paragraph 22 of her witness statement in relation to the investigation meeting she held with the Claimant on 17 October 2022 that she found him incredibly defensive and hostile. He increasingly became uncooperative during the meeting and proved defensive, short and abrupt in his answers. The Tribunal having read that transcript understands the basis upon which Ms Carpenter would have formed that view.[67]She rebuts the suggestion that she had a large lever arch file of relevant documents which the Claimant was not provided and says it contained her own notes and questions that she had prepared for the meeting. 12 of 32[68]She says that any communication to The Times or other media should have gone via Pauline Doyle who is the Respondent’s experienced media advisor rather than being provided directly by the Claimant. Ms Carpenter’s interview with Ms Sorice on 26 October 2022[69]Ms Sorice said that she and her fellow directors of Blackhorse had made repeated requests for a valuation of the Birmingham Project to no avail and they found they were being kept in the dark. Ms Carpenter’s interview with Mr Murphy on 28 October 2022[70]He referred to the Special Executive Council meeting in January 2021 and a valuation at around £95 million. It is not clear exactly what he was referring to but it is likely a reference to the comparator hotels referred to by the Claimant given that Mr Murphy goes on to say “yes they were very similar hotels in similar areas and used to show that we were on a par or better than those in terms of our valuation and for the future”. Ms Carpenter’s interview with Mr Uppal on 4 November 2022[71]Mr Gush Uppal was the former Acting Director of Finance but had only been employed for a period of a few months. He says the presentation given by the Claimant to the Special Executive Council was selective and constructed in such a way to convey that there was no issue. Whilst there was nothing incorrect there were a lot of half-truths. He went to say that Mr McCluskey and the Claimant ruled by fear although the Tribunal heard no other evidence to that effect, and Mr Uppal was only employed for a matter of months, so we make no finding in that regard. Ms Carpenter’s interview with Mr Brown on 9 November 2022[72]Mr Nick Brown assisted the Claimant with procurement and tendering. He said in relation to Hardy Evans it was an online only offer and seemed a fait accompli. He said that the claimant often pushed and pointed in the direction of Hardy Evans. He says there was no real tendering process. He said there was clearly another agenda going on. He never saw any income. He did not formally raise any concerns. Letter from McGrath Sheldrick dated 16 November 2022[73]The Claimant’s solicitors McGrath Sheldrick letter of 16 November 2022 invoked a formal grievance procedure on their client’s behalf. Very briefly it referred to insufficient information in the investigation process, his demotion from Assistant General Secretary post Ms Graham’s appointment, issues regarding data protection and his subject access request, failure to provide him with legal support and the disclosure of his suspension to Trade Union representatives. Mr McCluskey’s email to Ms Carpenter of 16 November 2022 13 of 32[74]Mr McCluskey reiterated his willingness to provide a statement and then of his own volition sent a four page statement which was included as part of her investigation. Ms Carpenter’s written questions to the Claimant dated 18 November 2022[75]Ms Carpenter’s written questions to the Claimant were primarily in relation to the Black horse directors’ concerns and the affiliated services contracts. The Claimant did not answer those questions. Appointment of Grant Thornton[76]Grant Thornton, forensic accountants, were appointed by the Respondent to carry out an investigation in relation to the appointment of associated service providers. They produced a report on 2 November 2022. Its principal findings are that many of the associated service providers appear to be linked directly or indirectly to the Claimant, they refer to a commonality of ownership structures and that many of the associated service providers have common directors, shareholders and employees and several of whom have direct links to the Claimant prominent amongst these being Ms Lonsdale and Mr Howard (also known as Mr Stevens). Seven of the ASPs share two registered offices being Eastham on the Wirral and Mallard Way in Swansea. The report refers to the relationship between the Claimant and Ms Lonsdale. The Tribunal finds they had a previous personal relationship, that Ms Lonsdale was then employed at the Claimant’s firm of solicitors and then took on a role providing various services to the Respondent to include running the Benevolent Fund. There is a section on the relationship between Mr Howard and the Claimant and reference at paragraph 1.23 to payments made between them with it being suggested that the Claimant loaned at least £1.1 million to Mr Howard between 2012-2015. The Claimant’s response to the Times February 2021 report regarding affiliated service providers[77]There is reference to the rebuttal which the Claimant gave in response to the February 2021 Times article in paragraphs 5.17 and 5.18. The Claimant’s draft responses did not go via the normal media relations PR person at Unite. We consider it to be unequivocal, and is accepted by Mr McCluskey, that the responses given by the Claimant did not represent a complete and candid disclosure of his involvement in or connection to the affiliated service providers. That is not to say there was anything wrong with such relationships it is simply an observation that the disclosures made were factually incorrect, or at least omissions from what was said arguably created a false impression as to the overarching nature of those interconnected business relationships. The Claimant’s position regarding the appointment of affiliated service providers[78]The Claimant says that he was brought on board by Mr McCluskey because of his personal business relationships and he did nothing more than seek to develop them for the benefit of Unite. Ms Carpenter’s report dated 1 December 2022 14 of 32[79]I will refer to this briefly in the interest of proportionality. Ms Carpenter sets out who she interviewed, the specific allegations and repeats much of the content of Grant Thornton’s report. She summaries the various interviews she had undertaken. She sets out at page 23 of that report the facts established in relation to the Birmingham Project, to include that the written presentation given to the January 2021 Special Executive Council did not refer to the valuation issue at any point, either to give a valuation or to explain why one would not be given. The Special Executive Council minutes record that the meeting was told that the valuation is the same as the cost. There is no evidence that Blackhorse directors were kept properly informed in line with legal responsibilities. The information on other hotels given in the presentation differed in location and/or scope to the Birmingham Project and so they were not legitimate comparisons[80]In relation to affiliated services the contract with Hardy Evans was disadvantageous to the Union. The Claimant had a number of direct and indirect links with affiliated service providers and there was a conflict of interest in him giving work to affiliated service providers who had registered offices in buildings he owned, there was evidence of personal relationships between the Claimant and at least two of the affiliated service providers, there was evidence of personal financial transactions between the Claimant and Mr Howard at the same time as communication between them was happening about Hardy Evans and there was evidence that an affiliated service provider paid rent to the Claimant. Revenue purportedly generated by Hardy Evans and the other affiliated service providers[81]The Tribunal was referred repeatedly by Mr Williams to evidence that the service providers, particularly Hardy Evans, had generated substantial revenue for the benefit of the Respondent. In particular we were taken to the September 2021 Executive Council Membership Report of the Assistant General Secretary. The Claimant says that circa £30 million was generated as revenue. However, we find that from looking at these reports this is a somewhat nebulous concept as ultimately it arises from Hardy Evans, amongst their other roles, seeking to persuade lapsed members to re-join the Union and that had a knock on beneficial effect in terms of Union revenue. The quoted figure of £21 million needs to be seen in that context. Ms Carpenter, for example, says that the Union could have retained members through other means and therefore it was not a source of revenue which could be seen as specifically attributable to the services provided by Hardy Evans. Invitation for the Claimant to attend a disciplinary hearing[82]In a letter from Ms Kielim dated 2 December 2022 the Claimant was invited to a disciplinary hearing to be held on 9 December 2022. The allegations being that he misled the Executive Council in reporting the Birmingham Project valuation and false comparisons and concerns about the probity of awarding contracts for affiliated services. Email from Bob Wylie to Mr Pike of Sky News of 8 December 2022 15 of 32[83]On 8 December 2022 there was an email from Mr Wylie to Mr Pike of Sky News in which he said that Ms Graham, the newly elected General Secretary pledged to find if there was any wrongdoing in the construction and spend related to the Birmingham Project due to various serious concerns about potential criminality that had emerged. He advised that the Mr Bowdrey QC and Grant Thornton reports had been shared with the police and that the General Secretary was committed to doing all in her power to recoup any money lost and holding anyone responsible to account. Letter from Magrath Sheldrick dated 6 January 2023[84]Magrath Sheldrick in a lengthy letter made a request for the disclosure of additional documents. The Respondent says that the Claimant’s solicitors had made repeated requests for documents, many of which had already been provided, or others which would be inappropriate to provide. Initially it was proposed that the Claimant would be provided with access to his emails, however that was rescinded on the request of the South Wales Police.[85]The Claimant was signed off on 10 January 2023 with lower respiratory tract infection.[86]His solicitors in a letter of 11 January 2023 referred to that and said that he was not well enough to participate in the disciplinary hearing.[87]On 12 January 2023 there was an email from Janet Henny to dear colleagues regarding the South Wales Police attendance on 6 April 2022 and it enclosed a statement which had been presented to the F&GPC and shared with the Executive Council and said it would be available on the Respondents website. It referenced the Respondent conducting a criminal investigation to include potential offences of bribery, fraud, money laundering and tax evasion. It did not specifically reference the Claimant. The Claimant’s resignation[88]The Claimant tendered his resignation in an email at 22:23 on 12 January 2023 in other words the day before the scheduled disciplinary hearing. It is important for the Tribunal to focus on what he said at this time as to his reasons for resigning and rather than setting these out now will consider his specific allegations in our conclusions. Ms Cartmail’s conclusions dated 13 January 2023[89]Ms Cartmail had decided that a hearing would take place in the Claimant’s absence. This was in effect a combined disciplinary and grievance hearing. She referred at page 21 of her conclusions, (page 1309 in the bundle), to the investigation unearthing and examining extremely serious matters which called into question the standing and integrity of a senior employee. She stated that had the Claimant remained in employment the findings of the investigation would have resulted in the allegations being upheld as constituting gross misconduct to include serious financial wrongdoings. She stated at paragraph 10 that in relation to affiliated 16 of 32 service providers it was clear that he was benefiting financially from alternative income streams and did not declare this. She found this to be a clear conflict of interest and an abuse of his position and trust that was placed in him as a senior employee of Unite. He awarded contracts on the basis of nepotism and favouritism and for his own financial gain. In relation to the Birmingham Project she found that the Claimant had mislead the Executive Council and directors of Blackhorse regarding the valuation of the Birmingham Project and that he had failed to arrange for the provision of advice to the Blackhorse trustees/directors regarding their fiduciary responsibilities regarding the financial transactions connected with the Birmingham Project and that the requirement for the Blackhorse directors to have oversight and insight were wilfully ignored by the Claimant leading to obfuscation and the provision of misleading information. The Claimant’s evidence regarding his resignation[90]The Claimant says that he resigned in response to a campaign of politically motivated mistreatment which was intended to destroy his reputation, career and livelihood. In paragraph 11 of his first statement he says that Ms Graham was driven to the point of blind obsession to position herself, no matter the collateral damage, in the best possible way to secure a second term of office. At paragraph 16 that Ms Graham had sought to destroy his reputation, career and livelihood. In cross examination he said that Ms Graham has always needed an antichrist and I became it. He says that he was seen as disloyal when he did not support her. He says that Ms Carpenter was part of the witch hunt against him. Mr McCluskey’s evidence regarding the Claimant[91]Mr McCluskey stated that any personal financial relationships that the Claimant may have with affiliated service providers were of no consequence to him unless they brought the Union into a conflict of interest. He said the important thing was that the relationships were producing revenue.[92]Mr McCluskey had a high regard for the Claimant. That is borne out by the highly positive reference to him in his autobiography in which he referred to having benefitted from the protection of the Claimant’s legal genius. He said in response to a question from me that the allegation that the Claimant had misled the Executive Council was wrong and unfair. He acknowledged that there can be a degree of factionalism within Unite as in all trade unions. Mr Cox’s evidence[93]Mr Cox says the final report Mr Bowdrey QC was not disclosed to the Claimant when it was produced on 7 December 2022 as it was subject to professional privilege and had been provided to another law enforcement agency which asked the Respondent not to release it. He referred in pretty pejorative terms to the Claimant providing contracts to his friends and that there was no evidence that he had sought to get the best value for money for the Respondent. Conflict of interest 17 of 32[94]This section was inadvertently omitted from the oral reasons but that should be included for completeness.[95]I asked the Claimant, given that he was a solicitor, how he would define a conflict of interest. He did not provide a direct answer to this and said that it would depend on the context. We considered this surprising for an experienced solicitor.[96]We consider that the Claimant consistently sought to evade the issue of the existence, or perception, of a conflict of interest by referring to his raison d’être being to nurture his business contacts and the revenue he claimed had been generated via the relationships he established. The Law Relevant sections of the trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA)
The Law
[97]To avoid unnecessary recitation only the sections of the provisions pertaining to the claim and the issues the Tribunal has to determine are set out. S 64 Right not to be unjustifiably disciplined(1) An individual who is or has been a member of a trade Union has the right not to be unjustifiably disciplined by the Union.(2) For this purpose an individual is “disciplined” by a trade Union if a determination is made, or purportedly made, under the rules of the Union or by an official of the Union or a number of persons including an official that— (d) he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the Union, or a branch or section of the Union, (f) he should be subjected to some other detriment. and whether an individual is “unjustifiably disciplined” shall be determined in accordance with section 65. S 65 Meaning of “unjustifiably disciplined". (1) An individual is unjustifiably disciplined by a trade Union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is— (a) conduct to which this section applies, or (b) something which is believed by the Union to amount to such conduct. (2) This section applies to conduct which consists in— (c) asserting (whether by bringing proceedings or otherwise) that the Union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, a requirement which is, or is thought to be, imposed by or under the rules of the Union or any other agreement or by or under any enactment (whenever passed) or any rule of law. 18 of 32 (6) An individual is not unjustifiably disciplined if it is shown— (b) that the assertion was false, and (c) that he made the assertion, or encouraged or assisted another person to make or attempt to vindicate it, in the belief that it was false or otherwise in bad faith, and that there was no other reason for disciplining him or that the only other reasons were reasons in respect of which he does not fall to be treated as unjustifiably disciplined. (7) In this section— “conduct” includes statements, acts and omissions. S 66 Complaint of infringement of right. (1) An individual who claims that he has been unjustifiably disciplined by a trade Union may present a complaint against the Union to an employment tribunal. (2) The tribunal shall not entertain such a complaint unless it is presented— (a) before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right, or (b)where the tribunal is satisfied— (i) that it was not reasonably practicable for the complaint to be presented before the end of that period, or (ii) that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed, within such further period as the tribunal considers reasonable. S146 Detriment on grounds related to Union membership or activities (1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for he sole or main purpose] of (b) preventing or deterring him from taking part in the activities of an independent trade Union at an appropriate time, or penalising him for doing so. (6) (b) preventing or deterring him from making use of trade Union services at an appropriate time, or penalising him for doing so. (7) (a) In this section— (a) “trade Union services” means services made available to the worker by an independent trade Union by virtue of his membership of the Union. Constructive unfair dismissal[98]Section 95 (1) (c) of the Employment Rights Act 1996 states that there is a dismissal when the employee terminates the contract, with or without notice, in circumstances in which he or she is entitled to terminate it, with or without notice, by reason of the employer’s conduct.[99]The leading authority is Western Excavating ECC Ltd -v- Sharp [1978] ICR 221. The employer’s conduct which gives rise to constructive dismissal must involve a repudiatory breach of contract Lord Denning stated: 19 of 32 “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance. If he does then that terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”[100]In summary there must be established first that there was a fundamental breach on the part of the employer; second, the employer’s breach caused the employee to resign; and third, the employee did not affirm the contract as evidenced by delaying or expressly.[101]In so called last straw dismissals there can be a situation where individual actions by the employer, which do not in themselves constitute a breach of contract, may have the cumulative effect of undermining the implied term of mutual trust and confidence. One or more of the actions may be a fundamental breach of contract, but this is not necessary. It is the course of conduct which constitutes the breach. The final incident itself is simply the last straw even if in itself it does not constitute a repudiatory breach. The last straw should at the least contribute, however slightly, to the breach of the implied term of trust and confidence.[102]The question of waiver has to be considered. A clear waiver, or simple passage of time, may demonstrate that the employee has affirmed the contract at any particular moment. However, it may be that a final incident would be sufficient to revive any previous incidents for the purpose of showing a breach of the implied term.[103]In cases where there has been a course of conduct, the tribunal may need to consider whether the last straw incident is a sufficient trigger to revive the earlier ones. In doing so, we may take account of the nature of the incident, the overall time spent, the length of time between the incidents and any factors that may have amounted to waiver of any earlier breaches. The nature of waiver is also relevant in the sense of was it a once and for all waiver or was it simply conditional upon the conduct not being repeated.[104]There is no breach of trust and confidence simply because the employee subjectively feels that such a breach has occurred no matter how genuinely this view is held. If, on an objective approach, there has been no breach then the employee's claim will fail (see Omilaju v Waltham Forest London Borough Council [2005] EWCA Civ 1493, [2005] ICR 481, CA). The legal test entails looking at the circumstances objectively, i.e. from the perspective of a reasonable person in the claimant’s position. (Tullett Prebon PLC v BGC Brokers LP [2011] IRLR 420, CA.)[105]The repudiatory breach or breaches need not be the sole cause of the claimant’s resignation. The question is whether the claimant resigned, at least in part, in response to that breach. (Nottinghamshire County Council v Meikle [2004] IRLR 703, CA; Wright v North Ayrshire Council UKEATS/0017/13. 20 of 32[106]Omilaju is authority for the proposition that the last straw does not have to be of the same character as the earlier acts, nor must it constitute unreasonable or blameworthy conduct, although in most cases it will do so. But the last straw must contribute, however slightly, to the breach of the implied term of mutual trust and confidence. An entirely innocuous act on the part of the employer cannot be a final straw. The test is objective. It is unusual to find a case where conduct is perfectly reasonable and justifiable, but yet satisfies the last straw test.[107]We must consider causation, the employee must show that he has accepted the breach, the resignation must have been caused by the breach and if there is a different reason causing the employee to resign in any event irrespective of the employer’s conduct there can be no constructive dismissal.[108]We note that where there are mixed motives the tribunal must consider whether the employee has accepted the repudiatory breach by treating the contract of employment as at an end. Acceptance of the repudiatory breach need not be the only, or even, the principal reason for the resignation, but it must be part of it and the breach must be accepted.[109]In the Judgment of Keene LJ at page 12 in Meikle: “The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation. It follows that, in the present case, it was enough that the employee resigned in response, at least in part, to fundamental breaches of contract by the employer.”[110]In a case in the Employment Appeal Tribunal heard by a former President, Elias P, Abbeycars (West Horndon) Ltd v Ford UKEAT/0472/07/DA he referred to Meikle at paragraph 34 and he then said: “On that analysis, it appears that the crucial question is whether the repudiatory breach played a part in the dismissal. There must be a causal connection between the repudiation and the resignation; if they are unconnected acts then the employee is not accepting the repudiatory breach. It follows that once a repudiatory breach is established, if the employee leaves then even if he may have done so for a whole host of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon. We respectfully agree with this reasoning. We think it would be invidious for tribunals to have to speculate what would have occurred had the employee been faced with the more limited 21 of 32 grounds of legitimate complaint than he had perceived to be the case. Moreover, if there is a repudiatory breach which entitles the employee to leave and claim constructive dismissal, we see no justification for allowing the employer to avoid that consequence merely because the employee also relies on other, perhaps unjustified or unsubstantiated, reasons. The employee ought not to be in a worse position as a result of relying on additional, albeit misconceived, grounds. Accordingly, although the tribunal did not in this case specifically engage with the question of whether there was a causal link between the repudiatory breach and the dismissal, that was no doubt because in the circumstances of this case this appeared not be in dispute. It was never suggested that the employee did not resign because of the list of grievances that he set out in his letter. It follows from the reasoning in the Meikle case that if any of those matters constituted a repudiatory breach, the resignation would be enough to establish constructive dismissal. Having regard to those two authorities, and there are others applying the same principle, it is clear to this Tribunal that when the Employment Tribunal asked itself what the principal reason for the resignation was, it asked itself the wrong question. It should have asked itself whether the breach of contract involved in failing to pay the sick pay was a reason for the resignation, not whether it was the principal reason.”[111]We note the case of Bournemouth University v Buckland 2010 IRLR 445 CA. the head note reads: “In constructive dismissal cases, the question of whether the employer has committed a fundamental breach of the contract of employment is not to be judged by a range of reasonable responses test. The test is objective: a breach occurs when the proscribed conduct takes place. The following stages apply to the analysis of a constructive dismissal claim:(i) in determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Malik test applied;(ii) if acceptance of that breach entitled the employee to leave, he has been constructively dismissed;(iii) it is open to the employer to show that such dismissal was for a potentially fair reason; and(iv) if he does so, it will then be for the employment tribunal to decide whether the dismissal for that reason, both substantively and procedurally, fell within the range of reasonable responses and was fair. It is nevertheless arguable that reasonableness is one of the tools in the employment tribunal's factual analysis kit for deciding whether there has been 22 of 32 a fundamental breach. There are likely to be cases in which it is useful. But it cannot be a legal requirement…” The parties’ submissions Respondent[112]Mr Gorton KC says that the Claimant’s evidence should be treated with considerable causation. He referred the Tribunal to various aspects of his evidence which he says are unreliable and that included his frequently using populist jargon including witch hunt, conspiracy, Murdoch right wing press etc. He says that the Respondent’s witnesses were all creditable.[113]He says that standing for election as General Secretary is not a trade union activity in an appropriate time but rather a membership facing activity. He says that there is a line of demarcation in the legislation between membership activities and protections and those relevant to employees or workers. He says that factualism or politicising is not what protection pertaining to trade union activities is directed to. He says that the whole architecture of the legislation is to police and protect trade union members. He sets out the guidance on the burden of proof under section 148(1) and says that the claim under section 64 is as a member not as an employee. He says that the claims under sections 65 and 146 are out of time and should fail for that reason. Claimant[114]He says that it is significant that Ms Graham has not given evidence, At paragraph 19 Mr Williams says that the totality of the media coverage and the internal releases was greatly overwhelming impression that the Claimants future employment was untenable in the eyes of the Respondent.[115]He sets out in sections 22 to 61 criticisms of what he calls baseless disciplinary charges. He says that there was no reason why the disciplinary hearing could not have been postponed given the Claimant’s ill.[116]He says that elections and due processes for the leadership of the Union are clearly activities of the Union.[117]He says the Claimant never denied a degree of interconnectedness between the affiliated service providers but this does not justify the conclusion that the Claimant was dishonest.[118]He said in response to a question from me that the Respondent was not bound to suspend the Claimant notwithstanding the police search warrant on 6 April 2022. Conclusions Unjustified disciplinary pursuant to section 64 of TULRCA 23 of 32[119]The provision is arguably somewhat circular in that the contention made by the Claimant is that under 64(1) he has the right not to be unjustifiably disciplined by the Union and under 64(2) (d) that involves being deprived of any access to any benefits which would otherwise be provided to him.[120]In asserting that the Union has contravened or is proposing to contravene a requirement which is, or is thought to be imposed by under the rules of the Union, this the Claimant saying that he was entitled to the benefit of paid for legal assistance. Out of time?[121]The first issue we need to consider is whether this claim is in time. The Respondent asserts that it is not. The original request upon which the Claimant relies was made in his email of 4 August 2022 and letter of 12 August 2022. We find that that these are the dates upon which the request was made. The fact that a further reference was made on 16 November 2022 and repeated in a summary letter from the Claimant’s solicitors on 28 November 2023 does not, in our opinion, have the effect of deferring the period from which time starts to run. You do not gain the benefit of additional time protection by merely repeating what in effect was the same contention. Therefore time runs from the date upon which the first request was made, and if we take 12 August 2022, it is clear that ACAS early conciliation was not commenced until 6 December 2022 and therefore that claim is out of time given that the time period under section 67 of TULCRA is three months subject to it not being reasonably practicable to commence proceedings within the requisite time period and we find that given that the Claimant is a solicitor and had the benefit of legal advice that it was reasonably practicable. Substantive merits[122]Notwithstanding our decision that the claim is out of time that we go on to consider the substantive contentions for completeness as to whether such an entitlement actually existed.[123]It is necessary to consider Rule 4.63. We accept that there is a degree of uncertainty as to the circumstances in which Unite provides legal advice and assistance. Nevertheless, we do not consider that this would have been a case where unjustifiable discipline would have been made out. The Claimant made a request and the Rules provide for the Respondent to exercise discretion. It is not a mandatory entitlement but rather discretionary and the Respondent exercised its discretion as it is contractually entitled to.[124]Further, the terms of the third party insurance provide that such advice and assistance only becomes potentially applicable once internal procedures have been exhausted. Internal procedures had not been exhausted. The Claimant had not yet invoked the grievance procedure. The disciplinary investigation was ongoing. It is entirely understandable that the Respondent, and its insurers, would be unwilling to provide potentially large numbers of employees engaged in internal 24 of 32 processes, with internal Union representation available, with the benefit of insurance backed claims. That is normal and consistent to the Tribunal’s experience of how insurers act in the assessment of internal claims.[125]Further, the Claimant’s evidence at paragraph 118 in the Edwards case is that any such assessment would be merits based and that is part of the discretion which either the Respondent or its insurers would have been entitled to exercise.[126]We do not, however, find that the assertion under section 65 (2) (c) was false or made under section 65 (6) in bad faith.[127]We find that the Claimant was not subject to unjustifiable discipline pursuant to S 64 of TULCRA and that claim therefore fails and is dismissed. Constructive unfair dismissal[128]We need to be very careful in our conclusions that we do not make findings regarding the police matters and criminal allegations against the Claimant as that would be outside the scope of our role.[129]Further it would be inappropriate for us to express any view on the serious allegations made in connection with the Birmingham Project. Nevertheless, we find that the attempt made during Ms Carpenter’s internal investigation to draw a line of demarcation between police and employment matters was inherently difficult and in effect impossible. The grounds relied upon by the Claimant[130]In assessing a claim for constructive dismissal we need to consider the specific test legal tests and the basis upon which the Claimant resigned. It is important that we do that based on what he said at the time rather than what is now being asserted. Looking at the list of issues and addressing these individually. Demoting the Claimant without notice and without good reason[131]We find that the Claimant was not demoted. We find that it was a normal expectation that a new General Secretary would make appointments, to what Mr McCluskey described as their kitchen cabinet, of those who had close political affiliations with them. It was therefore to be expected that Ms Graham would look to bring in her own people to senior roles.[132]Further, the position of Finance Director was only on an interim basis and was never intended to be permanent. The Claimant had no particular issue with that being removed.[133]Political was something he felt strongly about. Nevertheless given that he was adopting a high profile role within the Labour Party and that Ms Graham’s manifesto was to depoliticise the Union, in terms of its interactions with the Labour Party, we find it was to be expected that she would make such changes. We take 25 of 32 account of the evidence from Ms Cartmail and Mr McCluskey that on his appointment he did much the same in terms of bringing individuals in, very much as a new Prime Minister does in appointing Cabinet Ministers.[134]This was not a demotion. The Claimant continued to receive the same salary and other terms and would have remained as an Assistant General Secretary but certain additional portfolios no longer being his responsibility.[135]In any event he does not refer to this in his letter of resignation. Further, we would have taken the view had this been relied on as a single cause that he would have affirmed the contract given the very significant time which had elapsed. Unjustified discipline[136]Our findings have already been set out and therefore that is dismissed as a ground for constructive dismissal. In any event is not specifically referred to by the Claimant in his resignation email. Failing to care for the Claimant during a prolonged period of illness[137]We find that to be a very nebulous concept. The Claimant was off work but had not specified in ways he was not cared for by the Respondent. The Claimant failed to properly communicate with the Respondent in the provision of fit for work certificates. We find that this would not have been capable of being a fundamental breach of an implied term of trust and confidence. Preventing the Claimant from returning to work by way of an invented policy for fit notes[138]We find, as said previously, that the Respondent was confused as to fit notes. Nevertheless we do not consider that this in itself was capable of giving rise to a fundamental breach of an implied term of trust and confidence. Further, considerable time had elapsed between the Claimant initially seeking to return to work and the issue of fit notes being raised and his resignation. Further, we do not consider this to be one of the reasons he has relied on. Systemically misusing his private information and breaching his rights of privacy and confidentially[139]We find no evidence of misuse of the Claimant’s private information. We do, however, find that there are substantial grounds to believe that the Respondent may have, whether inadvertently or deliberately, at whose instigation we are not in a position to say, leaked communications regarding matters pertaining to the him, the police investigation and the Birmingham Project to Mr Pike and others. However, we find no evidence that that was done by, or at the instigation of, Ms Cartmail, Ms Kielim or Ms Graham, and therefore on the balance of probabilities we are not able to conclude that it was done and therefore we dismiss the contention that it constituted a breach of the implied term of trust and confidence. 26 of 32 Inventing baseless disciplinary charges as a means to remove the Claimant from his employment[140]The Claimant refers to baseless allegations being made in his resignation letter. The Tribunal finds there are many potential criticisms of basis of the allegations, and to a large part reflected in what has been set out at length by Mr Williams. Nevertheless we do not consider that in circumstances where a police search warrant had been issued, there was evidence from the Grant Thornton report of an acknowledged interconnectivity of contracts with affiliated service providers, there was evidence and that valuations of the Birmingham Project had either not been obtained or confusing comparators had arguably been used, that the allegations could be described as baseless. Clearly there was substance behind them. They were not matters which had no obvious and serious concern. They were not merely invented. There is no suggestion that Ms Graham or the Respondent incited the police to carry out their search investigations.[141]It would have been extremely surprising in the Tribunal’s view had the Respondent allowed its Head of Legal to return to active employment in circumstances where there were ongoing police investigations into very serious matters to include bribery, money laundering and offences under proceeds of criminality legislation. Conflicts of interest[142]Mr Williams sought to rely on the absence of a documented conflicts of interest policy. Whilst we consider that this represented a significant oversight in the Respondents procedures we do not consider that this was sufficient to explain why the Claimant, as an experienced lawyer, would not have been able to recognise the existence, or potential existence, of conflicts of interest in business relationships he established on behalf of the Respondent. This[143]Therefore, we reject the suggestion that the allegations were baseless. An unreasonable prejudicial disciplinary process, rejection of evidence from the General Secretary and failing to disclose to the Claimant material evidence.[144]The Tribunal finds that there were significant deficiencies in the investigation and disciplinary processes.[145]We find that there was a lack of proper separation between the respective roles of Mr Cox, Ms Cartmail and Ms Carpenter.[146]We find it extremely surprising that Ms Carpenter deemed it unnecessary or inappropriate to interview Mr McCluskey. It rather raises the suggestion that Mr McCluskey may have been seen as being too closely aligned with the Claimant and therefore not someone who should be interviewed. We would see that as being a significant shortcoming in a non constructive dismissal disciplinary process. 27 of 32[147]We reject the assertion that the Claimant was not provided with significant material evidence. There may have been some areas where additional material could be provided. Nevertheless he had the Grant Thornton report, Ms Carpenter’s report and the various statements pertaining to her report. We take account of the fact that his solicitors were requesting the provision of voluminous emails and documents at the same time as the Claimant failed to provide written responses to a series of what we consider to be reasonable questions. Refusing to adjourn the disciplinary hearing[148]We find it surprising, given that the Claimant had only been signed off on account of a respiratory tract infection until 24 January 2024, that the Respondent decided it was not appropriate to postpone the hearing. We do, however, take into account that the Claimant had been off for nearly 18 months. There may have been a concern that he was never going to return to face a disciplinary hearing. There had been two previous postponements of the hearing.[149]Ultimately what we need to consider, is not what is now said in the potentially persuasive arguments advanced in relation to deficiencies in the investigatory, disciplinary and grievance procedures, as referred to by Mr Williams from page 7 onwards in his skeleton, many of which we consider to be meritorious, but rather what he contended at the material time. The Claimant’s grounds of resignation as set out in his resignation letter[150]Looking at that document and the reasons given. Failure to provide him with essential documents[151]We have addressed this. Whilst arguably the final report of Mr Bowdrey QC dated 7 December 2022 may have been relevant we do not find that the failure to provide it would be sufficient, either alone or cumulatively, to constitute a breach of the implied term in trust and confidence. Further, we take account of Mr Cox’s evidence that there were restrictions imposed on its circulation given its potential relevance to a possible criminal proceedings. The failure to provide access to Unite employers until 36 hours ago[152]That in itself would not in our view be a sufficient issue to constitute a breach of the implied term of trust and confidence. The failure to answer questions quite reasonably posed on his instructions by solicitors.[153]The Tribunal has considered the totality of the relatively voluminous correspondence between the Claimant’s solicitors and the Respondent. We find that whilst there may have some instances where full answers were not provided 28 of 32 that the Respondent, when the correspondence is considered in its totality, provided answers on a timely and efficient basis to the correspondence. It may well be the Claimant did not always get the answer he was seeking, for example, the provision of legal assistance but nevertheless we do not find that any deficiency in the respondent’s response to correspondence to be capable of giving rise to a breach of the implied term of trust and confidence. A false narrative being created in correspondence[154]This has not been particularised. It is a very general point. We take on board what we have said previously in relation to media communications but again do not consider that this constituted a breach of the implied term of trust and confidence. The volte face regarding email access[155]This was also a decision made following a request from the police. We do not consider it sufficient to be a breach of the implied term of trust and confidence. Continued breaches of its own procedures[156]No specific contention is made as to exactly what procedure had been breached and as such it is not in our view capable of giving rise to a breach of the implied term of trust and confidence. Fundamental breaches of rights as an employee[157]This is a generic reference and is not in itself something which can properly be responded to as a specific allegation. Leaks of information intended to have the effect of damaging the Claimant’s reputation[158]This has already been addressed. His rights being and welfare being ignored at the altar of a smear campaign[159]This is a very general contention and again not something which could, in our opinion, give rise to a breach of the implied term of trust and confidence. A refusal to consider an alternative process[160]It is not clear what is being stated. We think it may relate to a contention that the disciplinary process should be stayed pending the outcome of the police enquiry. That would have meant that the Claimant would have remained in employment on an ongoing basis as the police investigation has still not been concluded. We do not consider that that this would have justified a breach of the implied term of trust and confidence. General observations on the constructive dismissal claim 29 of 32[161]Whilst the Tribunal considers that there were potential matters which would potentially have justified constructive dismissal, for example, the nature of the allegations, the failure to interview various individuals, the lack of specificity regarding the probity of affiliated service etc we nevertheless remind ourselves that it would be an error of law for us to substitute grounds which were not relied upon by the Claimant at the time of his resignation. It particularly significant that he did not say that he was resigning because the Respondent had insisted on the disciplinary hearing proceeding in absentia not withstanding him being signed off. As such it would be wrong for us to find that this was the reason why he resigned, when he himself as a solicitor with legal representation, albeit that is resignation letter was sent out of hours, did not refer to it as one of the reasons he relied on.[162]We find that the Claimant did not resign in response to any breach of the express or implied terms of his contract but rather that he resigned due to the fact that he had general frustration with the process and was unwilling to engage in answering questions regarding the affiliated services contracts. This was particularly evident from his approach during the meeting with Ms Carpenter on 17 October 2022 and in his failure to answer written questions posed by her on 18 November 2022.[163]We find that he affirmed the contract in relation to earlier alleged breaches to include his demotion.[164]Ultimately the breaches looked at either individually or cumulatively were not sufficient to give rise to a breach of the fundamental term of trust and confidence and therefore the claim for constructive dismissal fails and is dismissed. That the Claimant in standing for General Secretary of the Respondent undertook an activity in an independent trade union at an appropriate time and suffered detriment as a result pursuant to section 146 (1) (b) of TULCRA.[165]First, in terms of statutory construction we do not accept Mr Gorton KC’s contention that this is a provision which is incapable of utilisation by an employee as opposed to a trade union member. We take account of the fact that section 146 refers specifically to a “worker” having the right not to be subject to any detriment as an individual by any act or any deliberate failure to act. We acknowledge that there is a degree of overlap between membership and employee or worker rights. Nevertheless, we do not consider that it would be appropriate to adopt a prescriptive interpretation of section 146.[166]We find that standing in the election for General Secretary, together with the associated election campaign, would constitute an activity of an independent trade union undertaken at an appropriate time. Nevertheless the Claimant actually contends is based on Ms Graham’s alleged perception that he represented a potential candidate to stand against her in five years’ time. This, in our view, is not something which could sensibly be seen as an activity of an independent trade union. We accept Mr Gorton KC’s submission that would in effect involve politicising or factualism within a Union and is not something which would be an activity of a 30 of 32 this trade union. We reject the contention that his act of running for election as General Secretary was the potentially protected activity he is seeking to rely on.[167]We then repeat our findings as set out in relation to the constructive dismissal claim. Given that we have rejected all of the individual allegations at 2.1.1 they would also per se be rejected pursuant to section 146 (1) (b) as not being capable of constituting a detriment, even if we had found that the Claimant was protected given our determination as to the distinction between running for General Secretary and being a perceived threat to the. Out of time?[168]We do however find that this claim would have been in time. We take the view that there were a series of connected actions which culminated, or would have culminated had we found them to be substantiated, in the Claimant’s resignation on 12 January 2023 and therefore the claim would have been in time but nevertheless for the reasons set out it fails and is dismissed. Ms Graham[169]The Claimant in his witness statement made a series of very overt contentions that Ms Graham was ill disposed towards him. Nevertheless, the Tribunal did not consider that any evidence existed that Ms Graham had acted on a vindictive basis towards him either personally or as a result of his being perceived to be a potential future candidate to run against her for General Secretary. We consider that evidence exists that Ms Graham had not ruled out the possibility of the Claimant returning to active employment.[170]The Tribunal sees her absence as being a significant lacuna in the Respondent’s evidence. Nevertheless it is the Respondent’s prerogative as to which witnesses they call and the Tribunal acknowledges that for a hearing of this duration she may have had other activities she needed to pursue and we are also mindful that the Claimant was on record as saying that he wanted to put her on the witness stand with a view to attacking her. Final
Conclusions
[171]The unanimous judgment of the Tribunal is that the claims pursuant to sections 64 and 146 of TULCRA fail and are dismissed. The claim for constructive unfair dismissal fails and is dismissed. Applicant: The BBC Claimant: Mr H Beckett Respondent: Unite the Union Interested Party: South Wales Police HEARING AT LONDON CENTRAL Heard by CVP in an Open Preliminary Hearing on 29 August 2025 Before: Employment Judge Nicolle For the BBC: Ms B Grossman of counsel For the Claimant: Mr A McKeevor, solicitor For the Respondent: Mr S Gorton KC For South Wales Police: Ms L Marshall, in-house counsel. RULING[1]The Respondent is ordered to disclose the Bowdery Report and the Grant Thornton to the BBC within 14 days of this ruling being sent to the parties subject to the caveats set out at the conclusion of this judgment. The Hearing[2]The hearing had been listed to consider the BBC’s application dated 12 May 2025 for the disclosure of the following documents: a) The interim redacted Report of Martin Bowdrey KC dated 22 January 2022 into the Birmingham Project (the Bowdrey Report); and b) Grant Thornton’s Report dated 2 November 2022 in relation to the appointment of associated service providers (the Grant Thornton Report).[3]The BBC compiled a bundle comprising of 247 pages. Some additional documents were submitted by the Respondent. The interested parties[4]The application was made by the BBC. At my direction the Tribunal administrative staff wrote to various potentially interested third parties many of which had been identified by the Claimant’s solicitors. This included South Wales Police (SWP). On the day before the hearing the Crown Prosecution Service (the CPS) also gave notice of their interest and concern in the proceedings. However, they were not represented. No other third parties availed themselves of the opportunity to participate. Submissions[5]Ms Grossman provided two written submissions. The second of these expanded on the BBC’s position in relation to objections made by SWP to the disclosure of the Grant Thornton Report. There were also written submissions on behalf of the Claimant and SWP. Summary of the parties’ respective positions[6]The BBC considers that both the Bowdrey and Grant Thornton Reports should be disclosed. SWP opposes the disclosure of the Grant Thornton Report but does not have an issue with the disclosure of the Bowdrey Report. The CPS did not make any representations on the Grant Thornton Report being disclosed but did have a concern regarding the Bowdrey Report, but ultimately took the view that it was already in the public domain and therefore their objection to its disclosure no longer applied. The Claimant opposes the disclosure of both Reports. Whilst the Respondent is broadly neutral its overarching position was to the effect that the matters included in the Reports, and particularly the Bowdrey Report, were in effect already in the public domain. The parties’ respective positions are set out in more detail below. Relevant procedural background[7]The Claimant made an application dated 21 April 2023 for an anonymisation order pursuant to Rule 50 (3) (b) of the then applicable Employment Tribunal’s (Constitution & Rules of Procedure) Regulations 2013 (the Rules). At a hearing before Employment Judge Tinnion on 10 May 2023 an interim anonymity order was made. At a further case management hearing before Employment Judge Plowright on 21 March 2024 the anonymity order was extended until the commencement of the full merits hearing on 25 June 2024.[8]On 14 February 2024 the Respondent’s representatives had written to the Tribunal requesting a stay of proceedings following a letter from SWP dated 12 February 2024. On 16 February 2024 the Claimant’s representative opposed a stay of the proceedings.[9]Relevant matters referred to in Employment Judge Plowright’s case management order included:• The Claimant was already in possession of the Carpenter Report (which was largely derived from the Grant Thornton Report) and has had sight of the Grant Thornton Report.• SWP have not specified why there would be any prejudice to their investigation on account of the release of these Reports. The Respondent’s position on anonymity[10]On the day prior to the commencement of the full merits hearing on 24 June 2024 the Respondent indicated that it opposed continuation of the anonymity order. This was largely on account of the Claimant having expressly suggested that the fact of him being a suspect is in the public domain. This included reference to perspective High Court proceedings albeit he disputes the inference that this involved placing matters in the public domain. The full merits hearing[11]The full merits hearing took place between 25 June and 9 July 2024 before Employment Judge Nicolle and non-legal members. At the commencement of the hearing the Tribunal unanimously decided that it would be inappropriate for anonymity to persist and therefore from that point onwards the parties should be referred to by their names.[12]I set out below various paragraphs from the Tribunal’s written reasons dated 2 September 2024 which are relevant to this application. Press coverage pertaining to the Respondent (paragraph 25)[13]There has been substantial press coverage regarding Unite. The Tribunal is very mindful of what is relevant for its determinations, but nevertheless it is impossible to draw a line of complete demarcation between the wider press coverage on issues concerning Unite and the specific allegations pertaining to the Claimant. The Times (paragraphs 26-27)[14]The Tribunal was referred to an article from the Times on 16 January 2021 which included detailed contentions of potential conflicts of interest relating to the Respondent’s Birmingham Hotel project and the award of contracts to the Flanagan Group, a Liverpool based company. The article suggested that there were inappropriate and improper tendering processes for the award of those contracts. The Times editorial of the same date had an article entitled “crony socialism”.[15]There was an article more specific to the Claimant in the Times on 19 February 2021 which stated that Unite promotes financial services run by friends of Len McCluskey and specifically referred to the roles of former colleagues of the Claimant, Mr Bemrose in relation to Home Services and Ms Lonsdale in relation to Your Tax Refund. It stated that both companies operated from premises owned jointly by the Claimant at Eastham Hall on the Wirral. The Guardian paragraphs 29-30)[16]There were similar articles in the Guardian, in particular, 26 January 2021 referring to Operation Aloft which was an inquiry into the sale to developers of council owned land in Liverpool but also making a connection with the Birmingham Project.[17]There was a further article in the Guardian on 18 June 2021 recording the fact Mr Beckett had pulled out of the leadership campaign for the new General Secretary’s position. Mr Bowdrey QC instructed by the Respondent (paragraph 50)[18]As a result of these concerns Martin Bowdrey QC was instructed to prepare a Report on 13 January 2022. He produced an interim Report, the Tribunal has not seen the final Report, which is heavily redacted. Appointment of Grant Thornton (paragraph 76)[19]Grant Thornton, forensic accountants, were appointed by the Respondent to carry out an investigation in relation to the appointment of associated service providers. They produced a Report on 2 November 2022. Its principal findings are that many of the associated service providers appear to be linked directly or indirectly to the Claimant, they refer to a commonality of ownership structures and that many of the associated service providers have common directors, shareholders and employees and several of whom have direct links to the Claimant prominent amongst these being Ms Lonsdale and Mr Harrold (also known as Mr Stevens). Seven of the ASPs share two registered offices being Eastham on the Wirral and Mallard Way in Swansea. The Report refers to the relationship between the Claimant and Ms Lonsdale. The Tribunal finds they had a previous personal relationship, that Ms Lonsdale was then employed at the Claimant’s firm of solicitors and then took on a role providing various services to the Respondent to include running the Benevolent Fund. There is a section on the relationship between Mr Harrold and the Claimant and reference at paragraph 1.23 to payments made between them with it being suggested that the Claimant loaned at least £1.1 million to Mr Harrold between 2012-2015. Ms Carpenter’s Report dated 1 December 2022 (paragraph 80)[20]In relation to affiliated services the contract with Hardy Evans was disadvantageous to the Union. The Claimant had a number of direct and indirect links with affiliated service providers and there was a conflict of interest in him giving work to affiliated service providers who had registered offices in buildings he owned, there was evidence of personal relationships between the Claimant and at least two of the affiliated service providers, there was evidence of personal financial transactions between the Claimant and Mr Harrold at the same time as communication between them was happening about Hardy Evans and there was evidence that an affiliated service provider paid rent to the Claimant. Revenue purportedly generated by Hardy Evans and the other affiliated service providers (paragraph 81)[21]The Tribunal was referred repeatedly by Mr Williams to evidence that the service providers, particularly Hardy Evans, had generated substantial revenue for the benefit of the Respondent. In particular we were taken to the September 2021 Executive Council Membership Report of the Assistant General Secretary. The Claimant says that circa £30 million was generated as revenue. However, we find that from looking at these Reports this is a somewhat nebulous concept as ultimately it arises from Hardy Evans, amongst their other roles, seeking to persuade lapsed members to re-join the Union and that had a knock on beneficial effect in terms of Union revenue. The quoted figure of £21 million needs to be seen in that context. Ms Carpenter, for example, says that the Union could have retained members through other means and therefore it was not a source of revenue which could be seen as specifically attributable to the services provided by Hardy Evans.[22]It is not otherwise necessary to set out details of the Tribunal’s judgment and its reasons. The Claimant has submitted an appeal to the EAT which is awaiting listing. Administrative errors of the Tribunal[23]Unfortunately, it has come to my attention that there were a number of administrative deficiencies regarding this case and specifically pertaining to applications made by the BBC for access.[24]In an email at 16:50 on 27 June 2024 Phillip Kemp (Mr Kemp) of the BBC requested remote access to the hearing and a copy of the hearing bundle and witness statements. Unfortunately, a member of the Tribunal administrative staff advised him that the hearing had already concluded.[25]The Respondent’s representative advised the Tribunal that SWP were notified that the anonymity order had been revoked on 28 June 2024. Ms Marshal advised that SWP requested remote access to the hearing so that their interest could be protected but was advised by the Tribunal administrative staff that this would not be possible as it was an in person hearing. This was not communicated to me. Had it been it is likely that I would have exercised my discretion to have provide such access.[26]As a result of the continuing confusion by the Tribunal administrative staff regarding the lifting of the anonymity order in a letter to Mr Kemp and the parties dated 10 July 2024 Employment Judge Gidney refused the BBCs application for a copy of the hearing bundle and witness statements. It was erroneously stated that the case is subject to a restricted reporting order and that the requested documents could not be provided without breaching its terms.[27]Whilst oral reasons were given by me on 9 July 2024 the Claimant then requested written reasons. Whilst these were dated 1 September 2024, and sent to the parties by the Tribunal administrative staff on 6 September 2024, it was not until 18 October 2024 that the judgment was promulgated online. I understand that this delay was attributable to uncertainty amongst the Tribunal administrative staff as to whether the anonymity order had been revoked. I had advised the Tribunal administrative staff on 24 June 2024 that it had been, but it would appear that this was not actioned until the judgment was promulgated, and thereby made it much less likely that potentially interested parties would be aware of the hearing taking place and the opportunity to attend albeit it had clearly come to Mr Kemp’s attention by 27 June 2024.[28]I advised the parties that the above incidents were unfortunate and accepted that these deficiencies were relevant factors to the application. Media interest and reporting of issues relevant to the case and more generally to the Respondent[29]There has been significant media interest in matters pertaining to the Claimant, Len McCluskey, former General Secretary, the Birmingham Hotel Project, allegations of conflicts of interest and more generally concerning the Respondent’s financial affairs.[30]Following the promulgation of the Tribunal’s judgment BBC News online reported the decision on 18 October 2024. There has been more recent coverage concerning allegations pertaining to Mr McCluskey on the BBC to include those on 22 July 2025. This report specifically refers to the Bowdrey Report. The Respondent says that its “Project Clean Up” has made extensive reference to the Bowdrey Report. The parties’ respective positions[31]I will set out the position of the interested parties. Relevant case law from their respective submissions will be included in the law section. I will summarise in respect of each party, their position from relevant correspondence and their submissions. The BBC[32]They say that to all intents and purposes the Bowdrey and Grant Thornton Reports are already in the public domain. They say that their disclosure should be ordered for proper journalistic purposes in accordance with the open justice principle. They say that the matters which are the subject of the Reports are of profound interest the circa one million members of Unite and as matters of objective interest to the public at large.[33]The BBC says that a speculative, and entirely un-evidenced, general proposition of prejudice to criminal investigations/proceedings is insufficient as a basis of harm to outweigh the open justice principle.[34]Ms Grossman contends that the objections raised by the Claimant are various and disparate.[35]The BBC contends that SWP would have other options to protect the integrity of any criminal proceedings to include when proceedings are imminent pursuant to s.4 (2) of the Contempt of Court Act 1981. SWP Letter from Louise Emmitt, Head of Legal Services (Operational) to the Tribunal dated 19 March 2024[36]Ms Emmitt contended that the creation of the Carpenter and Grant Thornton Reports by the Respondent was directly contrary to agreements held with SWP/HMRC as to the criminal investigation and primacy of the criminal matters. SWP was of the view that the disclosure of these Reports to the Claimant was likely to prejudice the ongoing investigation.[37]In an email on 19 June 2024 the Respondent’s representatives notified SWP that the full merits hearing would commence on 25 June 2024 and that the existing anonymity order was due to expire at the commencement of the hearing.[38]Ms Marshall referred to Operation Crimson Mustang which involved an investigation by SWP and HMRC into significant criminal offences including bribery, fraud and revenue offences. The investigation centers on 10 suspects to include the Claimant.[39]SWP consider that the Grant Thornton Report is directly relevant, probative and illustrative of the issues and expounds the offences currently subject to criminal investigation. The release of the Report risks significant prejudice to the investigation and any subsequent prosecutions likely to arise. The Chief Constable opposes disclosure of the Grant Thornton Report on the grounds of overriding public interest in the effective investigation and prosecution of serious crime, and the need to protect the integrity of ongoing criminal investigation and any subsequent proceedings.[40]Whilst SWP admits that limited aspects of the evidence which was before the Tribunal are now within the public domain this does not include the significant detail set out in the Grant Thornton Report.[41]SWP considers that the disclosure of the Grant Thornton Report would risk compromising any subsequent criminal proceedings to include on the following grounds:• Mention of witnesses which SWP intend to rely upon that as of yet have not been disclosed to the suspects;• The potential for successful abuse of process arguments based on pretrial publicity and media influence; and• Potentially prejudicing the impartibility of a jury.[42]SWP contends that the BBC’s interest does not appear to be to consider the efficacy and veracity of the Tribunal proceedings but to understand the nature and extent of the ongoing criminal investigation. The Claimant[43]Whilst there has been significant correspondence on this issue from the Claimant’s representative I will only refer to key contentions. Letter from HarvardLaw dated 23 May 2025[44]They contend that the BBC’s application should be stayed pending the conclusion of SWP’s investigation and also the EAT appeal.[45]It is argued that the release of the Reports would prejudice the Claimant’s Article 6 rights in potential criminal proceedings and the administration of justice.[46]Concerns were expressed as to third parties rights of privacy.[47]It was contended that the BBC is a “proxy for the Respondent”.[48]That Mr Kemp/BBC had failed to avail himself/itself of the opportunity to attend the full merits hearing. The CPS[49]In a letter from Andy Young, Senior Specialist Prosecutor dated 28 August 2025 the CPS set out its opposition to disclosure of the Bowdrey Report. This related to two trials in 2026 and 2027 albeit not pertaining to the Claimant. However, subsequent to the disclosure of further documentation to him Mr Young in an email of 23:08 on 28 August 2025 stated: “Given the redacted Bowdrey Report is what is required by the BBC and is already in the public domain, the CPS has no further submissions in that regard”.[50]Mr Young did not attend, and his email was interpreted as the CPS rescinding any objection to the disclosure of the Bowdrey Report to the BBC. The Respondent[51]Mr Gorton KC stated that the Respondent’s position was broadly neutral. However, the Respondent did not want to imperil any criminal proceedings.[52]The Respondent does not have any objection to the disclosure of the Bowdrey Report given that it has already been extensively quoted in its Project Clean Up report.[53]In relation to the Grant Thornton Report he contends that the Claimant’s approach is “deeply strategic”. It had been disclosed to the Claimant as apart of the Tribunal proceedings. The Respondent does not accept that its disclosure to the BBC would give rise to any prejudice to the Claimant.[54]The Respondent’s position is that any damage to the Claimant has already been done. The matters are effectively already in the public domain. Not only were matters from the Grant Thornton Report referred to generically in the Tribunal’s judgment but further enquiries could be made by any interested party of matters to include by searching relevant companies on Companies House. The Law Presidential Guidance (Interim Non-Disclosure Orders) 2012[55]I take account of the Presidential Guidance On Interim Non-Disclosure Orders from 2012. Paragraph 9 provides that open justice is a fundamental principle. Paragraph 17 provides that because it is a public hearing the Tribunal will enable persons, including the press and media present at the hearing, to view documents referred to in evidence before it (unless it orders otherwise).[56]Paragraph 10 states that derogations from the general principle can only be justified in exceptional circumstances where they are strictly necessary as measures to secure the proper administration of justice. Derogations should, where justified, be no more than strictly necessary to achieve that purpose. Paragraph 20 provides that applicants will need to satisfy the Court that all reasonable and practicable steps had been taken to provide advance notice of the application. The Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the Rules)[57]The 2013 Rules are referred to as they were applicable at the time of the hearing. There is a distinction between the Rules and the equivalent CPR Rules. In summary under Rule 59 any final hearing shall be in public subject to Rules 50 and 94. Under Rule 44 any witness statement which stands as evidence in chief shall be available for inspection during the course of the hearing. The public domain[58]Once material is read or referred to in a public hearing, it enters the public domain and any person can apply for copies of that material, HMRC v Banerjee [2009] EWHC 1229 (Ch) [2009] EMLR 4 (per Henderson J) [38]. Any person may then apply for a copy of that information, and in deciding whether to grant that application, the open justice principle applies. The European Convention on Human Rights (the Convention) Article 6(1):[59]In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Article 8:[60]Everyone has the right to respect for his private and family life, his home and his correspondence. Applicable case law pertaining to the balance between open justice and protecting confidentiality The principle of open justice[61]'The rationale for a general rule that hearings should be held in public was trenchantly stated by Lord Shaw of Dunfermline in the leading case of Scott v Scott [1913] AC 417 at 477, [1911–13] All ER Rep 1 at 30. He quoted first from Jeremy Bentham: “'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' 'The security of securities is publicity.'”[62]Further, in Scott v Scott, Lord Atkinson acknowledged the importance of the principle in the following terms: “The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect”.[63]Lord Steyn also quoted the observations of Lord Woolf MR on criminal trials in R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966: "The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely ... Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary."[64]As emphasised in the Supreme Court’s decision in Guardian News and Media Limited Ltd [2010) UKSC 1 and other cases open justice is a principle at the heart of our system of justice and vital to the rule of law. The Supreme Court stated that decisions should be determined depending on the particular facts.[65]In R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420, the Court of Appeal described the principle of open justice as follows: “Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? … In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.” And further: ‘The purpose of the open justice principle .. is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators.” Cape Intermediate Holdings Ltd v Dring[66]Lady Hale’s judgment in the Supreme Court’s decision in Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 involved an application made by a forum representing asbestos victims, but not a party to the proceedings, for access to documents to include not just the pleadings but also a bundle of approximately 5000 pages. There is a distinction between the CPR and the Tribunal Rules. That primarily relates to the fact that under CPR Rule 5.4C there is a general entitlement for any person who is not a party to proceedings to obtain from the court records a copy of a statement of case. There is no equivalent provision in the Tribunal Rules.[67]The Media Lawyers Association intervened in the Dring case to argue that there was a public interest in the open accessibility of documentation pursuant to the general principle of public accessibility and justice being seen to be done in accordance with the basic legal principles.[68]The Supreme Court said: ‘There should be no doubt about the principles. The question in any particular case should be about how they are to be applied. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases.’[69]In paragraph 32 there was reference to documents being read or treated as read in open court being made available.[70]The principle of open justice was referred to in paragraph 34 to include, there can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle.[71]At paragraph 36 Lady Hale said the requirements of open justice applied to all Tribunal’s exercising the judicial power of the state and by implication Employment Tribunal’s would be included within that.[72]Paragraph 38 where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong. In evaluating the grounds for opposing access, the court would have to carry out a fact specific proportionality exercise.[73]At paragraph 44 reference was again made to the Guardian News and Media case and that the default position is that the public should be allowed access not only to the parties’ written submissions and arguments but also the documents which have been placed before the court and referred to during the hearing.[74]At paragraph 45 an applicant has no right to be granted access. It is for them to explain why it is sought and how granting access would advance the open justice principle.[75]At paragraph 46 the need to consider any legitimate interest of others.[76]At paragraph 47 it may be relevant to consider the practicalities and the proportionality of granting the request.[77]At paragraph 49 that courts had jurisdiction to make a wider order if it were right to do so. Where a privacy order is sought the burden of establishing any derogation from the fundamental principle of open justice, or full Reporting, lies on the person seeking that derogation. It must be established by clear and cogent evidence that harm will be done by Reporting, to the privacy rights of the person seeking the restriction on full Reporting, so as to make it necessary to derogate from the principle of open justice.[78]Where full Reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false the Tribunal should credit the public with the ability to understand that unproven allegations are no more than that. Goodley v The Hut Group Ltd[79]The High Court’s judgment in Goodley v The Hut Group Ltd [2021] EWHC 1193 concerned an application made seven years after the trial had concluded. The court held that the default position was that access to a report referred to in the trial should be permitted on the open justice principle and where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.[80]Paragraph 43 in the judgment of Mr Justice Calver made reference to the direction of travel, subsequent to cases such as Guardian News and Media, as being to allow a journalist access to a document which has been referred to an open court, and which is requested for journalistic purpose, unless a affording access to the document is outweighed by the risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interest of others.[81]These principles, and these authorities, apply to the employment tribunal, see Guardian News & Media Limited v Dmitri Rozanov, EFG Private Bank Limited v Media Lawyers Association [2022] EAT [12] [2022] I.C.R. 973 and specifically at paragraph 91, concerned the legitimate considerations which the EAT concluded the tribunal had failed to have proper regard to include to enable a better understanding of the matters referred to in the judgment, to ensure that any Reporting of the matter was fair and accurate, for stimulating informed debate and to obtain further information about the matter to insist further enquiries. and further adding at [94]: “Material should be made available so that the judgment can be properly understood. It may result in material being released that is of wider general public interest than the matters in issue in the particular hearing, as was stated by Lord Scarman in Home Office v Harman [1983] 1 AC 280.”[82]Access to the documents while physically in the hearing room will be unlikely to secure open justice, Rozanov at [42]. It is usually impracticable for those who would wish to inspect (and Report upon what they have inspected) to attend every single day of a hearing.[83]Similarly, there is no limitation on those documents being available after a hearing, Rozanov [101]: “it is not always practical for the media to attend hearings even in some cases where there is a significant public interest in the case being properly Reported… I do not see how any practical difficulty resulting from the delay in the application could have been found by a reasonable employment tribunal to have been sufficient to countervail the principle of open justice.[84]In HMRC v Banerjee [2009] EWHC 1229 (Ch) at [38] it was stated: “The touchstone, in my view, is whether the hearing in question is held in public, not whether it is in fact attended by any member of the public.” Derogations from the open justice principle[85]Tribunals must weigh the purpose of open justice and the value of the requested material against any potential harm to the legitimate interests of others, such as privacy or confidentiality concerns. Lord Reed in A v British Broadcasting Corporation [2014] UKSC 25; [2015]AC 588 reflected the core principles to be considered in determining matters of this nature: “The court’s power to make exceptions to the general principle was acknowledged in the legislation of 1693... the basis of the court’s power to make such exceptions is its inherent power to control its own procedure in the interests of justice.” [para 33], and later “the balance to be achieved under Article 10... is between protection of public discussion of matters of legitimate interest in a democracy, and protection of the integrity of particular court proceedings or of the administration of justice more generally.” [para 54][86]This balancing exercise is particularly relevant where competing rights under the ECHR, such as Article 6 (right to a fair trial), Article 8 (right to privacy) and Article 10 (freedom of expression), are engaged.[87]In BBC v Roden [2015] IRLR 627, Simler J sitting in the EAT held at paragraph 22: “The principle of open justice is accordingly of paramount importance and derogations from it can only be justified when strictly necessary as measured to secure the proper administration of justice.” Simler J continued at paragraphs 50: “The default position in the public interest is that judgments of Tribunal’s should be published in full, including the names of parties. That principle promotes confidence in the administration of justice and the rule of law. The Reporting of court proceedings in full without restriction is a particularly important aspect of the principle and withholding a party's name is an obvious derogation from it, requiring cogent justification for its restriction. Even in In re S, where the Article 8 rights of an innocent 10-year-old were engaged, anonymity for his mother, charged with murdering one of her other children, was refused by the House of Lords as not outweighing the public interest in open justice. The mere publication of embarrassing or damaging material is not a good reason for restricting the Reporting of a judgment, as the authorities make clear.”[88]Where a privacy order is sought:(i) the burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation;(ii) it must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice;(iii) where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, the employment tribunal should credit the public with the ability to understand that unproven allegations are no more than that; and(iv) where such a case proceeds to judgment, the tribunal can mitigate the risk of misunderstanding by making clear it has not adjudicated on the truth or otherwise of the damaging allegations: Fallows v News Group Newspapers Ltd [2016] ICR 801, EAT.[89]Cases such as A and B v X and Y and Times Newspapers UK EAT/2018/0113 emphasise the importance of the balancing exercise between competing rights.[90]In Millicom v Michael Clifford [2023] IRLR 295 the Court of Appeal’s judgment set out the basis upon which derogations can potentially apply with the relevant test to be applied in a sequential order comprising the interest of justice, the Convention rights and confidentiality.[91]In Attorney General v Leveller Magazine Ltd [1979] ACT 44, 550 Lord Diplock spoke of the need to depart from the general rule “where the nature or circumstances … are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest”. Warby LJ confirmed that “it certainly permits derogations that are required for the protection of the administration of justice in other legal proceedings or even to secure the effectiveness of law enforcement authorities” (Clifford v Millcom [33][92]In an assessment of this nature, a Court or Tribunal need consider the proportionality principle of open justice as detailed by Toulson LJ in Guardian v Westminster Magistrates Toulson LJ [85] [2012] EWCA Civ 420: “The court has to carry out a proportionality exercise which will be factspecific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others”.[93]Toulson LJ dealt further with this balancing exercise in his observations two years later in Kennedy v The Charity Commission [2014] UKSC 20, para 113 -114 “The court has to carry out a balancing exercise which will be factspecific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others. There may be many reasons why public access to certain information about the court proceedings should be denied, limited or postponed. The information may be confidential; it may relate to a person with a particular vulnerability; its disclosure might impede the judicial process; it may concern allegations against other persons which have not been explored and could be potentially damaging to them; it may be of such peripheral, if any, relevance to the judicial process that it would be disproportionate to require its disclosure; and these are only a few examples”.[94]In R (Marandi) v Westminster Magistrates Court [2023] 2 Cr App R 13 the Kings Bench Division 2023 specifically at paragraph 43 (3) said that when considering an application for derogation the judge was right to identify and apply a test for necessity, this was and remains an exception of narrow scope as referred to in Clifford v Milicom.[95]And at paragraph 43 (4) the threshold question is whether the measure in question, here allowing the disclosure of the claimant’s name and consequent publicity, would amount to an interference with the claimant’s right to respect for his private and family life. This requires proof that the effects would attain a “certain level of seriousness”.[96]And at paragraph 43 (6) it is in that context the judge rightly addressed the question of whether the claimant had adduced clear and cogent evidence. The cases all show that this question is not to be answered on the basis of rival generalities but instead by a close examination of the weight to be given to the specific rights that are at stake on the facts of the case that is why clear and cogent evidence is needed. Substantial prejudice in respect of any future criminal trial[97]In considering ‘substantial prejudice’ in R v Sarker v BBC [2018] EWCA Crim 134 [2018] 1 W.L.R. 6023, the Court of Appeal held at [32] the following to be relevant as counting against such prejudice: “The express directions given to jurors at the start of a trial (see Criminal Practice Directions 2015, paragraph 26G and now also given to all juries in writing). The principle that the court must proceed on the basis:(a) that juries have “a passionate and profound belief in, and commitment to the right of a defendant to be given a fair trial” and their integrity “is an essential feature of our trial process”; juries will abide by the directions of the trial judge, not only because they are directions of law that they must follow, but because they will “appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair”: In re B [2007] EMLR 5 , para 31, per Sir Igor Judge P; Ex p The Telegraph plc [1993] 1 WLR 980 , 987E–G, per Lord Taylor of Gosforth CJ. (We note these statements are borne out by the evidenced-based conclusions of the Law Commission in their 2014 Report “ Contempt of Court (2): Court Reporting ” (Law Com No 344) para 2.30(3) that “jurors find the trial process absorbing, and significantly prioritise what they hear during the trial over what they might have heard from the media outside of the trial”); and(b) that media Reports of the trial (1) will be “responsible, fair and accurate”: Ex p The Telegraph Group plc [2001] 1 WLR 1983 , para 9, per Longmore LJ; and (2) will not include (or link to) any prejudicial material the publication of which would be a breach of the strict liability rule under sections 1 and 2 of the 1981 Act. This last point bears emphasising. Journalists and their editors will strive to avoid any publication which risks putting them in breach of the strict liability rule. They are well used to ensuring that on-line Reporting of a trial does not refer to earlier prejudicial material or contain links to that material”[98]The Court of Appeal went on to state at [34]: “Even in the more typical cases of sequential or connected trials, where a section 4(2) order is made in the first trial to protect the second trial or retrial, the judge must still consider carefully the nature of the prejudice that is relied upon to justify the order. Where the following trial will take place some months after the first, it must be demonstrated convincingly that the risk of prejudice is substantial (or that an order is necessary), having well in mind:(a) that the jury in the following trial must be taken to be willing and able faithfully to discharge their duty (see para 32(iii)(a) above), and(b) the established “fade factor” (the effect of the lapse of time between publication and trial) that applies in news cases. In terms of jurors remembering publicity about a trial or the people involved in it, the “staying power of news Reports is very limited”. Conclusions and discussion The Bowdrey Report[99]Given that no interested party, other than the Claimant, opposes its disclosure the position is more straightforward than is the case with the Grant Thornton Report. The material contained within the redacted Bowdrey Report is also much more limited than in the Grant Thornton Report. It was established at the outset that the BBC’s application is only in respect of the redacted Report given that this is the document which was contained within the bundle of documents before the Tribunal. The very significant extent of the redaction would not, of course, be apparent to the BBC.[100]I need to take account of the Claimant’s objections to its disclosure and any adverse implications that may have on him and his position in relation to the ongoing criminal investigation and any resultant criminal proceedings. However, whilst taking these concerns into account I consider that it is appropriate to order the disclosure of the redacted Bowdrey Report. The matters referred to in the Bowdrey Report are already in effect in the public domain. There has been very significant media reporting over a protracted period regarding issues pertaining to the Birmingham Project. The Respondent has extensively quoted from the Bowdrey Report in its Project Clean Up and in materials disclosed to its circa one million members.[101]In these circumstances I therefore consider that no serious argument exists to preclude the disclosure of this Report. The presumption of public access to documents contained in a trial bundle applies. The fact that no representative of the BBC was in attendance at the hearing does not preclude such an application particularly in circumstances where there was an unfortunate incorrect communication from the Tribunal administrative staff regarding the status of the hearing.[102]I reject the Claimant’s contention that the disclosure of this Report, or indeed the Grant Thornton Report, would have any adverse effect on the EAT appeal and any remittal of the case. I consider that this is entirely unsubstantiated and speculative. The Grant Thornton Report[103]I consider the position in relation to the disclosure of this Report to be much more nuanced than that pertaining to the Bowdrey Report. The Claimant in effect repeats his grounds of opposition to its disclosure. His grounds have been, as contended by BBC, varied and disparate. Ultimately his primary arguable ground of opposition is the possible prejudice he would sustain in the ongoing police investigation and any resultant criminal proceedings. I reject his other contentions, to include that he would be subject to adverse publicity, given that that in itself would inherently apply in invoking public tribunal proceedings with the presumption of open justice and journalists/interested members of the public having the entitlement to see those documents which are seen by the tribunal. Arguments in favour of ordering disclosure[104]The Grant Thornton Report, which runs to over 100 pages, was included in the trial bundle. It was then extensively referred to in the Carpenter Report. Its key conclusions were summarised in the Tribunal’s written reasons. Had journalists/interested members of the public been in attendance they would have heard significant evidence derived from the Grant Thornton Report which was extensively referred to. They would have been entitled to request access to a hard copy of that Report given that it was included in the trial bundle.[105]No contemporaneous representations were made on behalf of SWP as to why public access to the Grant Thornton Report would be prejudicial to the ongoing criminal investigation and any resultant criminal proceedings. This was despite SWP being aware of the full merits hearing as indicated to them by the Respondent’s representatives in an email on 18 June 2024 and that the anonymity order had been lifted as per an email from the Respondent’s representatives dated 26 June 2024. It is, however, relevant that SWP requested remote access to the hearing on 28 June 2024 but were advised by the Tribunal administrative staff that this would not be possible given that it was an in person hearing. However, it would have been possible for written representations to have been made by SWP to the Tribunal in relation to the Grant Thornton Report.[106]The matters referred to in the Grant Thornton Report are of public interest. However, I consider that the material within the Grant Thornton Report is much more granular and not of the same level of significant public interest as the matters pertaining to the Birmingham Project, and the very significant cost over runs, contained in the Bowdrey Report. Further, it contains specific details regarding at least 10 named individual or corporate entities. Arguments against ordering disclosure of the Grant Thornton Report[107]Robust representations have been made on behalf of SWP as to the potential prejudice to its ongoing investigation and any criminal proceedings. I was advised that the cost of that investigation was circa £1.9 million. It has been ongoing for over three years. No indication was provided as to how much longer it would continue and what the timescale would be for any resultant criminal proceedings. My conclusions[108]Having carefully considered the respective grounds for and against the disclosure of the Grant Thornton Report I have concluded that it would be appropriate to order its disclosure. I reach this decision for the following reasons.[109]Had a representative of the BBC, or any other interested party, been in attendance at the hearing they would have seen it. I take account of the guidance in case law that it is no longer realistic to expect journalists to attend each day of public hearings given cost and resource restrictions.[110]I consider that the BBC’s application has been made for proper journalistic purposes.[111]There has already been very significant reporting of the circumstances pertaining to the generic matters referred to in the Grant Thornton Report to include the allegation that the Claimant had potential conflicts of interest in his appointment of third party service providers. This is reflected in generic terms in the Tribunal’s written reasons which had been promulgated online and therefore are already a matter of public record.[112]I take account of the objections raised by SWP but do not consider that they are sufficient to justify a derogation from the open justice principle. I do not accept that there would be a substantial risk that the ongoing investigation and any criminal proceedings would be seriously prejudiced. I don’t discount any possibility of prejudice but considered on a evaluative basis against the presumption of open justice I do not consider that such concerns have been sufficiently evidenced and particularised to justify a derogation from the presumption of open justice.[113]Given that the criminal investigation is largely based on the assertion that the Claimant was in cahoots with third parties who form part of that criminal investigation, and who are detailed in the Grant Thornton Report, it must be considered likely that such third parties would already be cognisant of the fact of SWP’s investigation. That is particularly the case given the references made to the contents of the Grant Thornton Report in the Tribunal’s judgment and media reporting of that judgment and matters more generally. Further, the SWP investigation has already been going on for over three years and the fact and subject matter of it is inherently already likely to have come within the cognizance of such interested third parties.[114]I do not accept the contention that there would be a serious risk of prejudice to any criminal trials. There has already been significant reporting of matters pertaining to the Claimant and the Respondent and the contention that the Claimant acted contrary to his professional, regulatory and fiduciary obligations to the Respondent and more generally.[115]In any event any reporting at this stage will be substantially, and probably a matter of years, in advance of any resultant criminal proceedings. It is highly improbable that any individual jury member would have a significant recollection of any such media reporting even had they had the level of interest in this news story to have read such reports. In any event I consider it would be highly probable that any potential jury member who was a member of Unite would be excluded from jury selection given their interest in the matter and a probable perception that they may not necessarily approach any such criminal trial without preconceptions. My final decision[116]For all of these reasons I consider that the disclosure of the Bowdrey and Grant Thornton Reports to the BBC is appropriate. Nevertheless, I acknowledge that SWP may wish to review its position. Therefore, whilst I order that the Respondent discloses these documents to the BBC within 14 days of this ruling being sent to the parties, this is subject to SWP and/or the Claimant not having given notice of their intention to appeal this ruling, or to make any application in any other forum to preclude the disclosure of these documents. I consider it important to include this caveat given that once the Reports have been disclosed and reported on by the BBC any challenge to this ruling would be rendered irrelevant. Employment Judge Nicolle Dated: 9 September 2025 (as reconsidered to make a deletion to paragraph 18 on 22 September 2025 and to make a minor amendment to paragraph 6 on 23 September 2025 and in accordance with Rule 67 to correct a typographical error in the spelling of a surname on 23 October 2025). 3 November 2025