Employment Judge BedeauMr D Bheemah (instructed by Counsel) for claimantMr B Cooper QC for respondentDate 17 January 2019
REASONS
Conclusion
[1]By a claim form presented to the tribunal on 31 May 2017, the claimant made claims under section 64 Trade Union and Labour Relations (Consolidation) Act 1992, in that she had been unjustifiably disciplined as a union member. To these claims the respondent denies liability and asserts that the claimant was not unjustifiably disciplined under the Act. The issues Discipline[2]Was the claimant disciplined within the meaning of s.64(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULR(C)A’)?a. Do any of the alleged acts set out at (i-v) below constitute acts of discipline within the meaning of TULR(C)A, ss64(2)(a-f), for example, under (f), a detriment: i. The email communications from BASSA of 3, 5, 13, 14, 15, 16, 17 March and 3, 4 and 21 April 2017 (as per the claim form)? ii. Unspecified commentary on social media at page x of the bundle? iii. The communications (including any links) on union sponsored Twitter revealing the claimant’s membership of the union and her involvement with the Certification Officer case? iv. The alleged denial of access to BASSA/Unite Website? v. Alleged denial of access to other membership services? vi. The change to the BASSA Branch Constitution made on 3 April 2017?b. If any of the alleged disciplinary acts (i-v) constitute discipline for the purposes of section 64, was a detriment made or purportedly made as required by section 64(2) in respect of the same? Unjustifiable discipline[3]If the claimant was disciplined under section 64, was the discipline ‘unjustifiable discipline’ for the purposes of section 65?a. Does the conduct for which the claimant was disciplined fall within section 65(2)(a-j) (3) or (4)? and/orb. Did the union believe the conduct for which the claimant was disciplined fell within 65(2)(a-j) (3) or (4)?[4]Does the reason or one of the reasons for the discipline fall within section 65(5) and/or 65(6)? Remedy issues (if relevant)
The issues
[5]If the Tribunal finds the claimant’s complaint to be well-founded:a. She is entitled to a declaration to the effect pursuant to TULR(C)A, s66(3);b. Any further issues in relation to the remedy will not be capable of determination at the hearing given the time frame pursuant to TULR(C)A, s67(1), s67(3) and s66(3). The evidence[6]The claimant gave evidence and called Mr Lewis Cox, BASSA member and Mr David Beaumont, an acquaintance.
Findings of fact
[7]On behalf of the respondent evidence was given by Mr Sean Beatty, Chair of BASSA; Mr Paul Mease, Unite Director of IT; and Ms Trudi Lanigan, Chief of Staff - Cabin Crew.[8]In addition to the oral evidence the parties adduced a joint bundle of documents comprising more than 367 pages. References will be made to the documents as numbered in the bundle. Preliminary applications[9]At the preliminary hearing held on 22 August 2017, it was noted that the respondent had prepared a draft list of issues but that the claimant wanted time to consider it and to take legal advice. It was ordered by this judge that the parties shall agree a list of both the legal and factual issues by not later than 4 pm 6 November 2017. An agreed list of issues was sent to the tribunal on the said date.[10]In the claimant’s claim form regarding allegations of bullying and harassment, she wrote:- “Denied access to the BASSA website and its associated membership services 11 May 2017. Denied access to Union sponsored discussion forum on 12 May 2017.” [Page 10 of the joint bundle][11]Mr Bheemah, counsel for the claimant, submitted that it was never the claimant’s intention to restrict herself to those two dates.[12]As neither the claimant nor Mr Bheemah prepared a written amendment to her claim form, the tribunal gave him time, overnight, to draft the amendment. The following day, 24 April 2018, he produced a three-page document in which he asserted that the claimant was denied access to the BASSA website and its associated membership services from 20 May 2016 onwards. Reliance was placed on page 124 in the bundle, a document that gives the dates on which the claimant attempted to access the website but was, allegedly, denied. There were also further unsuccessful attempts going into 2017[13]He submitted that determinations were made on the dates when the claimant was denied access. The determinations took place in secret somewhere, but the claimant could not identify with precision when they were taken. Although her password was reset, she experienced the same problems. Each response amounted to a new determination or purported determination[14]The claimant’s case, submitted Mr Bheemah, is that after raising the issue of a £500,000 “sundries” entry in the BASSA accounts before the Certification Officer, she had been denied access to the website.[15]He told the tribunal that when he received the papers the previous Thursday and after taking instructions from the claimant, it was agreed that he should apply to amend her claim. In relation to the time point, he relied on s.66(2)(b)(ii) “within such further period as the tribunal considers reasonable.”[16]As regards being denied access to the Un-official XXXX Facebook Page, Mr Bheemah said that the claimant was denied access from 6 May 2016 onwards in what was otherwise a straightforward action of having to click on a link with a mouse enabling her to access the forum, but it never happened because she was considered unsuitable. Those who raised questions about the £1/2 million in the accounts described as “sundry” were vetted and considered unsuitable. In relation to pages 116 to 118 of the bundle, on 22 July 2016, the respondent purported to show that control of the XXXX Facebook Page was going to be moved to Ms Elizabeth Malone, former Chair BASSA Branch. This was, Mr Bheemah further submitted, simply a relabelling exercise as behind the scenes BASSA union officers were pulling the strings. There was no need for an adjournment of the hearing to enable the respondent to carry out an investigation into these alleged determinations as its case is that there were no determinations.[17]Mr Cooper submitted in relation to the denial of access to the website, that this was a substantial amendment. The claimant’s pleaded case being that she had been denied access on the 11 May 2017. The proposed amendment starts from the 20 May 2016 and adds new facts to the pleaded facts. It alleges denial of access over a period of two years on 27 further separate occasions.[18]With regard to the time limits, under s.64(2) 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. “Purportedly made” does not mean what appears to the claimant to be a determination but when the union actually takes a decision that is outside its authority. The time limit runs from the date of that determination not notification to the claimant.[19]He quoted section 66(2)(a) which states that a complaint should be presented within three months beginning with the date of the determination 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.”[20]Mr Cooper further submitted that there is no ‘continuing act’ provision under TULR(C)A 1992. The time limit should be strictly applied and that there is no general discretion to extend time “within such further period as the tribunal considers reasonable.”[21]ACAS was notified and a certificate issued on 31 May 2017. Three months prior to the 31 May 2017 takes it up to 1 March 2017. From 20 May 2016 to 28 February 2017, those matters relied upon by the claimant are out of time.[22]In any event, there is no reasonable prospect of establishing that determinations were made. “Web Web” on page 124, shows the system generating an automatic output. There is no evidence of a decision or determination having been taken. The only personal input is when a name appears in the screenshot on page 124, for example, Ms Nicola Wilkinson changed the password on 8 June 2016 and on 5 June 2017.[23]In relation to the timing and manner of the application, Mr Cooper submitted it was made late in the day without any explanation being given. Further, the claimant did not say who made the determinations, by what means, and how they had access to the technology. She was not entitled to bring wholly speculative claims based on how the evidence is borne out. There is a lack of specificity in its formulation. There is no evidence of the claimant accessing the website from 20 May 2016 to 7 March 2017. There would need to be further investigation by the respondent in relation to these dates by accessing the metadata.[24]In relation to the Facebook Page, Mr Cooper submitted that this is a substantial amendment from the one occasion the claimant referred to in her claim form. She is alleging that many determinations were made but they are out of time as her case is that she was blocked from 6 May 2016. Page 68 in the bundle has nothing to do with Facebook and no determination was made. The basis of the claimant’s case is a miscellaneous list of documents with no specificity as to when, who and where? She cannot point to a single document that shows the BASSA representatives were responsible for denying her access to the Facebook page. They did not have access to the Facebook tools. The respondent’s case is that it had no involvement after 22 July 2016. This was the claimant’s third attempt at drafting her amendment and it is still not adequately pleaded. Conclusion on the application to amend[25]We have considered the following: rule 29, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 on the tribunal’s case management powers; the Presidential Guidance - General Case Management, January 2018; and the case of Selkent Bus Co v Moore [1996] ICR 836, a judgment of the Employment Appeal Tribunal.[26]We have concluded in relation to the denial of access to the BASSA website, that what the claimant was proposing amounted to a substantial amendment to the pleaded facts as it covered 27 dates over a period of two years. With regard to the time limit, she was and still is, a member of BASSA and the respondent union. She had access to Mr Beaumont, who is familiar with tribunal proceedings and this area of union law. She was aware that the appeal in her Certification Officer case was heard at the Employment Appeal Tribunal, therefore, had some familiarity with time limits. We were not satisfied that a good and sufficient reason had been given for the delay.[27]From the documents referred to us there was no evidence of any determinations having been made denying the claimant access to the website prior to 1 March 2017. The Web Web computer system simply generates an automatic response. The claimant was unable to say who made the determinations, by what means, and whether they had access to the website technology? Further, it was unclear whether she was accessing the website from 20 May 2016 to the 7 March 2017. The respondent would need to access the metadata information to establish whether she tried to access the website but was denied and was not certain that this information would be available in any event due to the passage of time and the detailed information required.[28]The opportunity was given to the claimant by this Employment Judge at the preliminary hearing, to consider the respondent’s draft list of issues and to take appropriate legal advice by 6 November 2017. By that date and after having taken legal advice, she should have put in her application to amend.[29]Having taken the time limit, the timing and the manner of the application, the nature of the amendment and the prejudice to the respondent, we have concluded that it was reasonably practicable for her to have presented these earlier matters in time. Acts relied upon prior to 1 March 2017 are out of time and we do not exercise our discretion to extend time on the basis that it was not reasonably practicable for the claim to have been presented in time. Accordingly, this application is refused.[30]In relation to being blocked from accessing the Facebook Page, this was again a substantial amendment she was proposing as previously her claim was limited to just one occasion and she was saying that many determinations were made. We were not taken to evidence that determinations were made. The claimant has provided a list of dates with little information as to who took the decision, when and where? The respondent’s position is that after 22 July 2016, it had no involvement in the management of the Facebook Page.
Conclusion
[31]We have taken into account the factors in Selkent and have come to the conclusion that the claimant’s application amounted to a substantial proposed amendment to the facts as pleaded, made on the first day of this hearing and is likely to cause the respondent prejudice in having to consider the various dates given and to ascertain whether or not there is evidence that determinations were made in relation to denying access to the Facebook Page. No good and sufficient reason had been given for the delay and we rely on the approach we have taken in relation to the other application to amend. For these reasons this application to amend is also refused. Section 65(5) TULR(C)A defence[32]On the final day of the hearing, Mr Bheemah raised the issue of the respondent being entitled to refer to s.65(5) of TULR(C)A as it is not in its pleadings, therefore, it would need to apply to amend.[33]Section 65(5) states the following:- “This section does not apply to an act, omission or statement comprised in conduct falling within subsection (2), (3) or (4) above if it is shown that the act, omission or statement is one in respect of which individuals would be disciplined by the union irrespective of whether their acts, omissions or statements were in connection with conduct within subsection (2) or (3) above.”[34]Mr Cooper acknowledged that s.65(5) is not referred to in the response. He submitted that pleadings are not the final word. At the preliminary hearing in August 2017, in the respondent’s draft list of issues, s.65(5) is referred to in paragraph 3. At the time the claimant was represented by Mr Beaumont who brought an unsuccessful unjustifiably disciplined claim and s.65(5) was an issue in his case. The point should have been taken by him at the preliminary hearing. The defence provided by s.65(5) allows the respondent to argue that it would have taken similar action in similar circumstances.[35]The parties were ordered by this judge to agree a list of both the legal and factual issues by 6 November 2017. The list was agreed by the stated date and it included s.65(5) in paragraph 3.[36]By rule 64 Employment Tribunals (Constitutional Rules of Procedure) Regulations 2013, what the parties agreed to was an order by consent to include s.65(5). Although the claimant did not have access to a qualified lawyer, Mr Beaumont, as we have already stated, has a detailed knowledge of this area of union law. The defence was flagged up in the respondent’s draft list of issues and it was agreed to by the claimant and her representative in November 2017. In our view, there was no prejudice to the claimant as she and her representative had advance notice of this defence prior to the commencement of this hearing. The respondent is allowed to rely on this defence. Findings of fact[37]BASSA is the acronym for British Airways Stewards and Stewardesses Association which is affiliated to Unite the Union. It has approximately 9,000 members and operates like a union within a union.[38]BASSA, London Eastern Branch (LE 2000) is a branch of Unite the Union and is one of the respondent’s over 3,000 branches. The Branch is made up of cabin crew staff employed by British Airways based at Heathrow.[39]In 2009 the respondent was engaged in a protracted dispute with British Airways which led to strike action in 2010 and was eventually settled in 2011, though not without controversy.[40]During the dispute with British Airways, it was rumoured that British Airways in-house investigators had improperly accessed union officers’ emails and phone calls in 2010 but we received no evidence in support of this rumour. There were rumours that senior officers of BASSA (LE 2000) were paid, in total, £1,000,000 in compensation because of British Airways allegedly improperly accessed their communications during the dispute.[41]At a members’ branch meeting on 12 August 2013, Ms Lizanne Malone, Branch Chair, informed the members that the allegations of an out of court personal settlement involving the Branch’s union officers, were false. Her attempts at dispelling the rumours were not fully accepted by the membership as a small but vociferous group remained sceptical.[42]The claimant told the tribunal and we do find this fact that she was content with outcome of the settlement of the dispute between British Airways and the respondent in 2011.[43]In order to understand the genesis of the claimant’s case against the respondent, we would need to refer to section 30, TULR(C)A. This provides that a trade union member has the right to request access to any accounting records of the union which are available for inspection or related to periods including a time when he or she was a member of the union. Section 30(2) states; “(2) Where such access is requested, the Union shall –(a) Make arrangements with the member for him to be allowed to inspect the records requested before the end of the period of 28 days beginning with the day the request was made,(b) Allow him and any accountant accompanying him for the purpose to inspect the records at the time and place arranged, and(c) Secure that at the time of the inspection he is allowed to take, or is supplied with, any copies of, or extracts from, records inspected by him which he requires. (3) The inspection shall be at a reasonable hour and at a place where the records are normally kept, unless the parties to the arrangements agree otherwise.”[44]What prompted the claimant to go to the Certification Officer was her concern about fume vents. There are fume vents inside an aircraft and the fumes can cause crew members to become ill. If a crew member is given a card, the size of a credit card, to show to hospital staff that they have been exposed to fumes inside an aircraft, this would be similar to the malaria card a crew member carries with him or her. It was suggested that crew members of between 9,000 to 10,000, should have a fume card but the official union representatives of BASSA said that they did not have any money for that purpose. At that point the response the claimant said, “piqued” her interest. It led her to put in a request in January 2014, under s.30 of TULR(C)A to the Branch seeking access and disclosure of the Branch’s accounts covering the period from 2008 to 2013 and to take copies. The accounts were not disclosed in compliance with s.30, therefore, the claimant referred the matter to the Certification Officer under s.31(1) of TULR(C)A. The request was received on 14 March 2014.[45]The Certification Officer, Mr David Cockburn, investigated the breaches in correspondence and held two hearings, on 9 April and 11 November 2015. In his judgment dated 12 January 2016, he ordered the respondent to give the claimant access to the accounting records of the BASSA Branch (LE/2000). He stated: “Unite the Union is ordered to give the claimant access to the accounting records of the BASSA Branch of the Union (LE/2000) which show the individual transactions which together constitute the aggregate amounts that are entered in the quarterly and annual accounts of the branch for the years 2008 to 2013 under the headings ‘stand down’ or ‘stand down allowance’. The accounting records are to include the date each payment was made, the identity of the recipient and the brief description of the expenditure category of that payment or other reason for payment in accordance with the accounting conventions of the Union. The accounting records may be print outs of the information retained electronically, or in such other form as discloses the above accounting records.”[46]Mr Cockburn further ordered that the inspection should take place on or before 26 February 2016 or such later date as the parties may agree. The respondent was ordered to allow the claimant to be accompanied at the inspection by an accountant, being a person eligible for appointment as a statutory auditor under Part 43, Companies Act 2006. The accountant, he noted, should agree with the respondent the terms in relation to protecting the confidentiality of the records. Failing that, the respondent would not be obliged to allow the accountant to accompany the claimant. It was also ordered that the respondent would ensure that at the time of inspection, the claimant would be allowed to take, or be supplied with, any copies of, or extracts from, records inspected by her which she may request.[47]We have referred earlier to a group of the BASSA Branch (LE/2000) members not prepared to accept the statements made by Ms Malone, that group was known as “Crew Defence”. This name was taken from a group that had organised the raising of funds to legally challenge British Airways’ conduct during the dispute over the removal of staff travel. It raised more than £100,000. Some of its members have remained in employment with British Airways and some have now left but continue to utilise social media to criticise the BASSA Branch. Although the industrial dispute was settled through negotiation and voted on by members and endorsed by 90% of the membership, a small number of members and ex-members were unhappy with the outcome and sought to challenge the settlement. They also challenged and opposed some of the decisions of the BASSA Branch and its elected representatives. These challenges included: the restructuring of the allowance system; the bidding system for work; pensions; the electoral process covering representatives; balloting process; the updating of the constitution; the accounting records and pay awards. Some of the challenges were made directly to the respondent and were widely publicised on social media, in the print media and by applications to the Certification Officer.[48]The BASSA Branch officers considered several individuals, by their actions, as being part of this group: Ms June Freeman stood against Mr Sean Beatty, Chair of the branch on two occasions; Mr Aidan Duffy stood for Branch Secretary; and others in this group stood as union representatives. All were unsuccessful in their attempts, but their activities did not go unnoticed by the Branch officers and elected representatives, as well by some of the BASSA membership who were of the view that the Crew Defence’s actions were part of a concerted campaign to undermine BASSA, the respondent and its representatives. The claimant was seen as part of the Crew Defence group, but she denied any involvement in it. She stated that she was aware of Crew Defence as this group tried to explore legally the ways in which they could get staff travel restored.[49]We find that there was a considerable amount of bad feeling exhibited by some members of the BASSA Branch directed at the officers. Mr Aidan Duffy was dismissed by British Airways because he made several offensive and disparaging statements about Ms Lizanne Malone, Chair of the BASSA branch at the time in 2014. Mr Duffy later brought a claim against British Airways alleging that he had been unfairly dismissed but the Employment Tribunal found that his dismissal was fair. It was Mr Duffy who put the claimant in contact with Mr David Beaumont. [94 to 96B].[50]We have made reference earlier in this judgment to Mr David Beaumont and his involvement with the claimant. In or around 1999 Mr Beaumont set up a website to “expose corruption and lack of democracy in the union”. He stated in evidence that the information he publishes about the union is obtained from media sources, whistleblowers, his own experience and from the public Certification Officer hearings he had been involved in. He described himself as a thorn in the side of the bureaucracies running the unions. He asserted that there is little grassroots democracy, turnout is around 6% for executive elections and the ruling factions will have a ‘slate’ of chosen candidates. He had put in many requests for inspection of union accounting records under rule 19.10 of the respondent’s rules and under s.30 TULR(C)A. He is not a BASSA member.[51]We have already found that Mr Beaumont is knowledgeable when it comes to trade union law and trade union activities and understands the formal means of holding unions to account via the unions’ rules and the Certification Officer. He has represented union members before the Certification Officer. At the Certification Officer hearing on 9 April 2015, he represented the claimant when he was described in the judgment as a “friend” and a member of the respondent, paragraph 4. On 11 November 2015, the claimant represented herself but Mr Beaumont accompanied her. The Certification Officer, however, gave him leave to make certain submissions on her behalf.[52]Mr Beaumont admitted to having posted the BASSA Branch’s accounts on his website detailing the sundry expenses of £523,940 as he believed that large amounts of the Branch’s money had been misappropriated. He said that to record over £1/2 million as sundries did not show, in detail, how that money had been spent.[53]Several disparaging articles were published by the press about the Branch’s accounts and the alleged “unaccountable” £500,000. Some were published in Private Eye in July 2015, March 2017 and April 2017 [41-45].[54]Although some of the articles referred to the claimant by name, there was no evidence that she was the source of the information disclosed to the press other than having made the initial request for the disclosure of the Branch’s accounts.[55]There were similar publications in the Daily Mail as well as on social media sites.[56]The issue for the disgruntled members was that the £523,940 described in the accounts as “sundries” did not explain how that money had been spent and that in turn gave rise to suspicions and rumours.[57]The respondent appealed against the Certification Officer’s decision in the claimant’s case, to the Employment Appeal Tribunal. The hearing was held on 8 November 2016 and the judgment was handed down on 9 February 2017. Mrs Justice Slade at the EAT held that the Certification Officer did not err in holding that the respondent had failed to comply with s.30(1) TULR(C)A, by not giving the claimant access to accounting records showing payments to each trade union official of her Branch which together totalled a substantial monthly amount. Under ss.28 and 29, the respondent was obliged to keep available for inspection accounting records of its transactions necessary to give a true and fair view of the state of affairs of the trade union and to explain its transactions. Further, on the facts, the Certification Officer did not err in holding that the cumulative amounts in the accounts relating to stand down payments which had been made available, did not comply with this obligation. In addition, the Certification Officer did not err in refusing to redact the names of the officials in receipt of such payments.[58]Article 8 of the European Convention on Human Rights was considered by the EAT. The respondent argued, unsuccessfully, that it was entitled to keep its financial affairs confidential to avoid inadvertent disclosure to British Airways which may give it an unfair advantage in discussions.[59]Moreover, the EAT held that the Certification Officer did not err in refusing the application by the claimant for access to bank statements when she had been given access to the accounting records regarding sundries to which they relate. The Certification Officer had ruled that bank statements were not accounting records within the meaning of s.30 TULR(C)A.[60]It is the claimant’s case that as a result of taking her case to the Certification Officer she had been unjustifiably disciplined by officers of the BASSA Branch.[61]The elected officers of BASSA give most of their time to BASSA union duties and their employer is British Airways. They are cabin crew staff who, by the nature of their work, travel all over the world. Mr Sean Beatty is currently the Chair of the BASSA Branch and he told us he works 85% of his time on union duties.[62]The elected representatives meet during the first three days at the beginning of the month and they are: Mr Beatty; Mr Aidan Smith, Branch Secretary; Mr Marcel Devereux, Treasurer; Mr Chris Harrison, Deputy Industrial Director; Mr Nigel Stott, Industrial Director; Ms Trudi Lanigan, Chief of Staff; Mr Paul Taylor, Agreement Secretary for Worldwide BASSA; and Ms Debbie Warren-Price, Europe Fleet Agreement Secretary. The agenda is sent out in advance of the meeting.[63]Every quarter the members of BASSA would meet with the elected officers.[64]According to Mr Beatty, despite BASSA accounting records being disclosed, incorrect allegations that over a £500,000 had gone missing from the accounts, caused uproar amongst members with the matter being frequently raised with representatives of the Branch including him. There were also requests from within the Branch committee, for both representatives and members to hear the full story as questions were being raised regarding the integrity and honesty of the representatives. They were again raised by members following the hearing of the case in February 2017. He stated that there was clearly an overwhelming desire from the majority of the members for a response from the Branch. There were also discussions amongst the Branch committee members over the telephone on how the issue should be addressed. The officers and the representatives were clear that they had a duty to publish a factual account of events and protect the representatives who were being singled out and identified on social media. They discussed the possibility of disciplining the claimant but after having taken legal advice, decided not to.[65]Of note was that on 3 March 2017, the elected representatives sent an email to the 9,000 BASSA Branch membership which, according to Mr Beatty, was an attempt at setting the record straight. It referred to the court cases and specifically to the claimant’s case as well as to the Castillo v Unite case. In relation to the claimant’s case, the representatives were of the view that trade union representatives were excluded from the European Convention on Human Rights in terms of personal privacy because of the EAT judgment in her case. They asserted that the press, employers and the government would have access to their accounts. They also stated; “In short, this is a major blow for every trade unionist in the country, brought about by a handful of our own members. For those who feel some sympathy for their cause, please reflect on the damage this will bring about to the entire Trade Union movement under this anti-Trade Union Government. For them it is quite simply manna from heaven. They will be grateful to Ms Mills.”[66]In the Castillo v Unite case referred to above, 30 claimants brought proceedings before the Certification Officer, the lead claimant being Mr Miguel Fernandez Castillo. They alleged that the 2015 BASSA Branch elections were conducted in breach of the union’s rules. Out of the five matters raised, the Certification Officer only found one in their favour. He made a declaration that during the 2015 Branch elections, the respondent breached bullet-point five of the Branch Balloting Protocol by not publishing on the Branch’s website the electoral addresses of the candidates.[67]The email also referred to the case having been heard the previous week and published the names of 21 of the claimants including the claimant’s name. At the end a full list of names of the BASSA Branch representatives is given [68-73].[68]In response to the BASSA email, Mr Guy Hewitt, a member of BASSA, emailed on 4 March 2017 the following:- “I see the BASSA filth are up to their usual, disgusting tactics … AGAIN!”[69]In response to this the BASSA representatives wrote on 5 March 2017 citing Mr Hewitt’s email as an example of an ongoing campaign against the BASSA representatives which had lasted for several years and considered it an example of “BASSA bashing”. The claimant was not referred to in Mr Hewitt’s email. At the end of the representatives’ email they wrote:- “We aren’t all cyber warriors and nor would we want to be, there is life outside Facebook, but despite the protestations the simple fact remains that ‘actions have consequences’. Thanks to Ms Karen Mills the entire Trade Union movement is now under financial scrutiny from anyone. That is her legacy and something that only she can live with, regardless of her original intention(s). No-one else is to blame for the outcome of that ruling, except maybe those that for their own ends encourage her to do so.” [74-76][70]In another of the representatives’ emails dated 13 March 2017, entitled “A Dummies Guide To Financial Records (Part 1)” referring to financial records, they made specific reference to the claimant who at that stage had not inspected the Branch’s financial records. They referred to her having taken her case to the Certification Officer and wrote:- “Ms Mills took a case to require branches to submit accounting records far in excess of the union to which they belong, in that she wished to inspect every aspect of expenditure behind the quarterly accounting figures. Individual receipts, bank accounts and reps’ personal, financial information etc. Please take into account that Unite has a financial department, BASSA does not and neither does any other branch. We are ordinary members who work for BA. In other words, the branch and potentially every other branch in the union, will be burdened with maintaining accounting records going back years that are in excess of that required by the main union!” [77-80][71]In a further email by the Branch officers entitled “A Dummies Guide To Financial Records (Part 2)”, sent on 14 March 2017, it reproduces the Private Eye article dated 14 March 2017 with reference to the claimant’s case and the £523,940 unaccounted for as sundries. There is a commentary on the article with specific references to the claimant. The bold and underlined are as set out in the text. It stated; “We have been asked to share with you a reply posted by a rep to Karen Mills, who wrote as to her motivation on the unofficial BASSA Facebook page through a third party. Numerous members found it helpful and asked us to share the post with all members. Ms Mills professed that her motives were, entirely philanthropic, that it was her right to do so and so must be for the good of the Union. Yet as you will understand from the background we have given and the press article above, it does beg the question: how did the information from a statutory member enquiry to look over the union’s finances to see how members money is used, ends up being portrayed in the national press in such a predictably sensational way? Ms Mills may well claim not to have been directly involved, that maybe true but it was undoubtedly the pursuit (however unintended) of such information that has led to the situation where a hostile press, is able to distort information for their own ends. We have also had enquiries along similar lines from The Sun newspaper. Most of the establishment press will always try and inflict as much damage to the union’s reputation as possible: exactly as we said it would if this kind of information is made easily available to them. That this article is untrue, will not bother the press one jot. British Airways must also be rubbing their hands with glee as a group of members pull apart the union in a way they could not.”[72]There then followed an open reply to the claimant from a representative of the BASSA Branch committee. It is replete with references to the claimant and is highly critical of her and personal. An example is the following:- “Here is the rep’s open reply to Ms Mills :- “Thank you for posting the usual one sided version of events from Ms Mills. Unfortunately for Ms Mills, myself & the rest of the BASSA Reps will not let her selective amnesia go unchallenged any longer. Ms Mills was provided with the Branch accounts which detailed all income and expenditure, to the same level of detail as the Unite’s main accounts registered and displayed on the Certification Officers own website. Ms Mills knows full well (as it was explained to her numerous times in the various hearings) and in the end she had to ACCEPT that “sundries” is only used because the accounting template provided from Unite as a format, is basic and limited in scope and because of that, was used to record the additional division of funds between Eurofleet and worldwide once Branch monies were received from Unite. Ms Mills was represented by serial complainer David Beaumont* (not a BASSA member or BA employee) who by his own admission specialises in taking out as many complaints as possible against Unite in the hope that he wins some. He is part of an ultra-left group called the Grass Roots Alliance. The information re “sundries” was leaked to Private Eye (this does not refer to the article above but a previous article) in a misleading manner designed to imply that monies were unaccounted for when they were not and posted on Mr Beaumont’s own website. For this he was formally disciplined by Unite and expelled. Ms Mills states again she wants accounts to be “lowest level” even down to taxi receipts. This is correct and it is this that is so damaging. It means anyone with a vested interest in the Union can poke around in every detail of the union’s accounts to try to find something to discredit the union with. This is confirmed entirely by the above article. An easy example of this is that Ms Mills and or Mr Beaumont inferred that BASSA had funded a Hair dressers in Southampton – it was in reality a software provider for our messaging service and was simply called Salon Advantage software. Also, that BASSA had spent thousands on art prints when the new Unite Heathrow airport offices were opened at Bath Rd. BASSA was generously donated a whole floor of office space free of charge by Unite (we used to have to pay £30K a year). BASSA helped provided furniture and union history art work, in the shape of old BASSA newsletter covers, for the building to get it up and running (all of which we were later reimbursed for by Unite) but never letting the truth get in the way of a good story, these examples show how those with intent can easily misrepresent and make mischief. YES, absolutely we had a top Human Rights QC because the Unison recognised the dangers to the entire Unite movement of losing this case and did not want to do so, however we lost. Ms Mills won this case and she has won the right for anyone and everyone to pour over all unions’ finances that no company has the right to do. Ms Mills has placed a burden on Trade Unions that most will not be able to fulfil and at ENORMOUS cost of members’ money. All Branch accounts are already audited by the Branch Treasurer, independent auditors and then again by Unite’s financial audit team. Ms Mills fought for the right to demand to know all reps private information … this is akin to going to BA and demanding to be able to inspect colleagues wage slips in detail but with this ruling, the right to inspect anybody’s wage slips in any part of the union, whether you are a member or not and to take copies and distribute it how you wish. Quite rightly Unite fought that tooth and nail. What can we expect next? Cue a campaign from this same grouping (named last week, but remember their names were already in the public domain) urging you NOT to vote for BASSA reps in the upcoming Executive Council Elections? Somehow, in their distorted version of reality, they will believe BASSA – and therefore YOU – will somehow be best served by having NO BASSA members on our own Unite Executive Council! That you will be best represented by having none of our reps but political appointees from elsewhere. No, we don’t understand it either, but these members and exmembers are nothing if not predictable. We will bet money on it! (Not from the accounting records of course..!) WATCH THIS SPACE” [81-85][73]The above passage gives the claimant the benefit of the doubt in relation to the publication of the information in the press, yet it refers to her by name.[74]In a further email dated 15 March 2017 entitled “Is it all over? (Not Quite…)” the BASSA Branch representatives referred to the fact that the accounting records sought by the claimant were being compiled and would be made available to her the following month: “After she inspects them she will do what she wishes to do with them. It will show nothing more than it should, despite Ms Mills and others wishful thinking: there are no great secrets that will be ‘revealed’.”[75]It is difficult to understand why it was necessary to publicise the name of the claimant and the fact that she would be given copies of the BASSA Branch’s financial records [86-87].[76]Mr Adrian Smith, Branch Secretary, emailed the claimant and copied in BASSA Branch representatives and Ms Tanya Katrine Cumming, of the Branch’s Finance Committee, on 27 March 2017, in which he wrote that on 7 April 2017, the claimant would be attending Unite, Bath Road Offices to view the accounting records as she had requested. Further into the correspondence, he wrote:- “Quite rightly your information is private and confidential between you and your employer and is protected by data protection laws and so only noted in the public accounting record in general terms as part of overall expenditure. Ms Mills has secured the right through the certification office, to the removal of any privacy and to place a far greater burden on Trade Unions than is required of Public Limited Companies and that all of those details could be made public. We have always stated there is absolutely nothing to hide, but we have already seen the mischief that will be made by an anti-union press in regards to the Trade Union movement. Ms Mills has always protested that her motives for doing so were honourable, on 7 April we will find out. Ms Mills can inspect the records for as long as she wishes to do so, and ensure that they are to her satisfaction. However, one thing is certain; those records will willingly be made available exclusively to Ms Mills on that particular date, and if they do later appear in the press or social media in some sensationalised distorted form, i.e. the Private Eye article nonsense, or used or referenced by British Airways, then there can only be one possible source from which they have originated – Ms Mills. Any protestations to the contrary would appear distinctly hollow. Naturally we would like to remind our members that the books are available for inspection after the branch meeting on Monday 3 April – as they always have been at every branch meeting!” [97-98][77]In a further email from the representatives under the sub-heading “Background” dated 6 April 2017, reference was made to the Branch’s accounts being made available to the claimant for her personal inspection. It repeated their concerns about information being leaked to the press or having been misrepresented. It stated that the respondent’s legal department advised that a legal letter be issued to the claimant prior to her inspection and this was reproduced in the email under the sub-heading “Draft letter to Karen Mills” and contained the text of the amendment to the Branch’s rules passed at the meeting on 3 April 2017. This stated that the branch would take any breach of the rule extremely seriously and would not hesitate to pursue the claimant by taking disciplinary action and action in the civil courts. This was in respect of any disclosure of information to third parties. It set out the amendment to the Branch’s constitution; “The information contained in accounting records is sensitive and confidential both to the union and its members. Members in receipt of accounting records are required to maintain the privacy and confidentiality of said information. No member who has obtained copies or extracts of accounting records may disclose such records (or information contained therein) to a member or non-member, or take any steps to facilitate such disclosure. Publication of said records in any form would be viewed as disclosure.” [99-101][78]We were very concerned that a private communication between the Branch and the claimant was circulated to its 9,000 members.[79]On 31 May 2017, the claimant presented her claim form to the Employment Tribunal [4-15].[80]On 4 October 2017, the branch representatives sent a report of a branch meeting to discuss pensions. Notwithstanding that subject matter, the document referred to the respondent being required to disclose its accounting records. It stated the following:- “Much store has been placed on an entitlement to expect every penny that the Union spends on members’ money, to ensure that in their opinion, it is being spent prudently. However, the irony that those same “accounting records” may in the future reflect a substantial sum of members’ money being paid out as damages, appears lost.” [106-107][81]We find that the above passage was a reference to the claimant’s Certification Officer case and her Employment Tribunal claim.[82]Mr Beatty told the tribunal that at the monthly Branch Committee meetings, the composition of the emails sent to the members was a joint effort with everyone “chipping in bits and pieces” although he could not remember exactly who wrote what. He confirmed that the emails were all authorised by the Branch Committee. In our view the style and content of the emails suggests to the tribunal that they were written by one person. Also, they appeared throughout the month and not just for the first three days in the month when the Branch Committee would meet. Contrary to what Mr Beatty said the emails, in our view, went far beyond challenging the factual assertions made by those who they perceived to be working against the interests of the Branch. We find that the emails specifically targeted the claimant in ways which went beyond simply setting the record straight. The un-official BASSA Facebook Page[83]We have referred to the BASSA XXXX Facebook Page. The “XXXX” notation was the unofficial symbol of those who had participated in industrial action. It originated from a code placed on a crew member’s roster to show they had taken strike action instead of flying duty. When the industrial dispute ended, there was still the desire to discuss the strike’s aftermath and one of the things founded was a Facebook group called “XXXX” which began as a place for people to share their experiences but gradually became something entirely different. This had no connection with the respondent and was simply a group of people expressing themselves. The membership was around 5,000. It appeared that this Facebook group was used to attack the then Chair of the branch, Ms Lizanne Malone. An example of this was Mr Duffy who made various rude, unpleasant and disparaging comments about Ms Malone and, as a consequence, was dismissed by British Airways.[84]The BASSA Branch decided to reinstate its involvement in social media by creating its own Facebook group page. This was done in May 2016 and was called the BASSA XXXX Group. It was set up to challenge the XXXX Facebook Page. [110][85]The BASSA Branch’s Facebook Group was monitored and run by volunteers but at the June 2016 Branch Committee meeting it was agreed that the volunteer strategy was not working. The representatives also had a discussion with the respondent about the use of Facebook and they put together a strategy and staffing plan to assist the volunteers. By the time of the July 2016 Branch Committee meeting, the Committee decided that it would no longer be involved in Facebook as it was not working and too much work was required to run it properly. The members did not have the time and the resources to staff it. They also could not supervise who were moderating it and what members were saying. Another consideration was that the respondent did not want to have uncontrolled Facebook and social media sites being set-up for which they had responsibility. [243][86]In July 2016 the BASSA Facebook Page was closed. At that time Ms Malone, by then the former Chair, set-up another Facebook group outside of the respondent for which BASSA played no part. From 22 July 2016, Ms Malone was in charge of this new Facebook page without BASSA’s involvement. It was called the Un- official BASSA XXXX Page. It invited members to apply to the administrator in the normal way or by email to join. Existing members who were part of the former Facebook Group automatically became part of the new Facebook set-up by clicking on the appropriate link. [116-118][87]The claimant’s position is that she had been denied access to this new Facebook Page following the Certification Officer case. Although she is competent in accessing social media, we have not seen one posting from her.[88]In March 2017, Ms Axelle Ozou-Messager, posted a message from the claimant after the claimant complained that she was blocked from accessing the Facebook Page. In the message the claimant gave her account of the chronology of events leading to her reference to the Certification Officer and the EAT Judgment. [46-48][89]There was a response, may be from someone on the BASSA Committee, having regard to the style of language used, who challenged the various assertions made by the claimant via Ms Ozou-Message. In the penultimate paragraph the following was written: “As Ms Mills confirms she has managed to secure a ruling that all TU Reps are not covered in terms of privacy by the Human Rights Act, a victory an employer could only dream of … and one that even our elected politicians enjoy whereas Reps don’t. Well done Ms Mills … And for clarity … I will be posting this separately on its own thread, in case you decide to delete this one when you are challenged.” [49-50][90]The claimant sent her response to the above post via Ms Ozou-Messager. Her account was not emotive and was largely factual. [51-57][91]We were taken to several Facebook postings. Of note were the ones by Ms Marie-Louise Elliott, Worldwide Fleet Elected Representative. She wrote in one of her postings, amongst other things, the following:- “Ms Mills has placed a burden on Trade Unions that most will not be able to fulfil and at enormous cost of members’ money.” “As Ms Mills confirms she has managed to secure a ruling that all TU Reps are not covered in terms of privacy by the Human Rights Act, a victory an employer could only dream of … and one that even our elected politicians enjoy whereas Reps don’t. Well done Ms Mills …”[92]Mr Ian Boden posted:- “At last … a bit of clarification … although I must say the attitude towards Ms Mills does seem to be a bit unprofessional.”[93]This was responded to by Ms Elliott who wrote:- “Why unprofessional Ian Boden? Ms Mills has taken BASSA to court and everything we have published is a matter of public record. We have a duty to protect our members interests and let you know what’s going on – once we were allowed to by the Certification Officer. There is nothing that we have said that any person in the land cannot gain access, so I’m not sure why it seems “unprofessional” to you when the implications of Ms Mills’ case affects the whole of the TU movement in the UK.”[94]From the documentary evidence before us, it would appear that Ms Elliott was the only BASSA Branch representative who challenged the claimant on Facebook. [331-367][95]The claimant wrote to Mr Aidan Smith complaining about not being able to join the Un-official XXXX Facebook forum and invited him to look into her complaint as there appeared to be no logical excuse for her exclusion. She also referred to being denied access to BASSA’s website as it did not accept the generic password. [126][96]A post from “Dija Ait” referred to the claimant as having been banned from the Facebook Page. Significantly, this statement was not challenged by Ms Elliott in response. Dija Ait wrote:- “I don’t get why Ms Mills is banned from this conversation page, instead of shouting the messenger (Axelle), it will be far clearer for everyone to have this person here and to explain directly to fellow colleagues her process and reason?” [363][97]Ms Elliott responded; “We have made our point and you have made yours. BASSA has thirty years of good will in the bank of looking out for members interests and so we are happy for our members to be the judge of what it [is] right and what is wrong now that we can tell them what’s going on. The simple fact remains that every action has a consequence & it doesn’t matter how Ms Mills dresses it up, thanks to her the entire Trade Union movement is now under financial scrutiny from anyone. That is her legacy and something that only she can live with, regardless of her supposed intentions.” [364-365][98]We find, having regard to the postings by Axelle Ozou-Messager, that the claimant was blocked from accessing the Facebook Page notwithstanding the new arrangements under Ms Malone. Miss Ozou-Messager specifically referred to the claimant having been blocked from and wrote on her behalf.[99]Following the instructions given by the BASSA Branch in relation to the new set-up, it was a straightforward procedure to follow to gain access to the Facebook Page. Ms Elliott in her posts did not challenge the statements that the claimant had been denied access.[100]The claimant’s case is that she had been denied access to the Facebook Page since May 2016. Access to the website[101]The Branch’s website is designed and hosted by an external company. The content is produced by the Branch. Although the Branch runs the website, the login process is connected to the respondent’s membership systems by what is known as an Application Programming Interface. This means that the password that is utilised for the login to the respondent’s website, is that which is also used for the BASSA website. The respondent would provide the automated and manual password reset function. A login is a mechanism to access the site and the information which the respondent hosts on the membership. This is called “My Unite” and it allows the member to update their address, contact details, preferences and so on.[102]Access to the BASSA website requires both a login and a password. The login is normally but not necessarily the members’ email addresses. This can be changed via the login process. If the member does not know the password, he or she can request a new one and it is automatically generated. There is no human operator involved in the process. We find that the operators of the BASSA website have no ability to lock or interfere with the login process. The process is under the remit of the respondent and not the Branch or any company that hosts the Branch’s website.[103]In relation to access to the website, on 20 May 2016, the claimant was given her login details, namely her user name and password. [130][104]The tribunal heard evidence from Mr Paul Mease, the respondent’s Director of Information Technology, who has been in that post for approximately five years. We found his evidence to be convincing, cogent and credible. He looked at the claimant’s user history on 11 May 2017, the date alleged by her that she was denied access to the website. On that date a request for a password reset was made by her and she was provided with a new password and login details. There was, according to Mr Mease, no reason why she was unable to access to both BASSA’s and the respondent’s websites utilising the new login and password. No individual can be blocked from doing so as it is an automated process. [138][105]We further find that the renewal of passwords and login details is a regular occurrence, on average around 20 to 30 times a day. Some individuals we were told do it every time they use the site. In Mr Mease’s view the claimant regularly applied for new login details. If she had tried and for whatever reason, failed to access the respondent’s site using the details supplied in the email, the My Unite site has a contact number for the respondent’s Helpdesk which could manually undertake the exercise and inform the member of the new password.[106]On 3 June 2017, someone by the name of Valdemar Gomes, wrote to the claimant that access to the website had been denied due to her many failed login attempts. He, however, asked that the respondent should unlock her account and that she be sent a new password. He invited her to let him know by the end of the week if she did not hear anything. [127][107]On 8 June 2017, an email was sent to her by a Ms Nicola Everley on behalf of the respondent in which she wrote:- “Dear Karen, If you enter the wrong password five times your login is automatically deactivated, this is what has happened to you. I can confirm that this has now been reactivated and your password reset to BASSA followed by your staff number, with no spaces. Please let me know if you have any further problems.”[108]We find that if a member enters the wrong password five times their login would automatically be deactivated. [129][109]There are two ways in which someone in the respondent’s IT Department can block access to the website, that is either by altering the password and/or removing the account.[110]We were provided with a screenshot of the claimant’s user history and this shows that on 20 May 2016, she made five unsuccessful attempts to login. Mr Beatty wrote to her on 8 June 2016, stating that she had put in an incorrect password which could only be reset by the respondent and he had copied in Ms Everley.[111]Ms Nicola Everley, formerly Wilkinson, updated the claimant’s login details on 8 June 2016.[112]It was not until 7 March 2017, nine months after she was sent her new login details by Mrs Wilkinson did the claimant make a further unsuccessful attempt to access the website. There were more unsuccessful attempts on 6 April and 24 April 2017. [124][113]On 11 May 2017, following another unsuccessful attempt, she emailed the BASSA Branch Secretary. She wrote; “Dear Adrian, I have been trying to access the BASSA website but unfortunately without success. I have, of course, gone through the appropriate resetting of the password a few times but to no avail. The website does not even accept the password that is generically sent. It seems that this is an unlikely glitch as others have tried the same without any problem. I do hope that this is not a denial of my Union facilities as has been and still is with the unofficial XXXX Forum. I have been denied membership from this Union platform since the onset and to date never been given any reasonable reason as to why. Can you please look into this issue for me as there seems to be no logical excuse for the above … I would appreciate a response to the above within seven days.” [126][114]On 5 June 2017, Mrs Wilkinson emailed the claimant; “Your password had been reset to BASSA followed by your staff number.” [128-129][115]From the evidence we find that the claimant was not blocked from accessing the BASSA website on the 11 May 2017.[116]In relation to the Un-official Facebook page, however, she was unable to access this on 12 May 2017 and this was the position up to the hearing of this case.[117]After sending the email entitled “Court Cases and The Public Record” dated 3 March 2017, to the Branch members, the Branch then put the communication on Twitter on 4 March 2017. The followers were invited to access official websites where the cases have been reported. From the tweets which followed it appears that some individuals took exception to this communication being tweeted. [68-73, 108][118]The claimant told us, and we do find as fact that it was her daughter who drew her attention to the tweet on 23 March 2017. We find that the claimant did not give permission to the Branch to disclose the information to the union members. Amendment to the constitution[119]The BASSA Branch Committee members were concerned about the Branch’s financial records being disclosed to the press and to other third parties with information in relation to union activities being misrepresented by the press. They took advice from a Queen’s Counsel who advised that there should be an amendment to the constitution.[120]On the 24 March 2017, the BASSA members were notified of a meeting to be held on 3 April 2017 together with an agenda and order of business. Under Item 9 “Any other business”, in brackets is the word “notified”. No details were given on the matters to be discussed under “Any other business” (145G to 145H). This was to be a members’ branch meeting of the officers and members of the branch.[121]In the minutes of the Branch meeting held on 3 April 2017, a range of issues were discussed. Under “Any other business” it states the following:- “Unite Legal advised us to add to rule regarding accounts. Added to Rule 6 under Branch Fund Constitution – Inspection of books. Rule is read out by Chairman replicated below, will become Rule 6c, 6d, 6e and 6f. Appropriately proposed and seconded by two members. (c) The accounting records of the Union under s.38-31 of the 1992 TULRC Act contained financial information of a sensitive and confidential nature. Members are entitled to inspect accounting records under the said legislative provisions. They may be accompanied by an accountant to assist them if the accountant enters into an agreement to protect the confidentiality of the records. Members are entitled to obtain copies or extracts of accounting records. (d) The information contained in accounting records is sensitive and confidential both to the Union and its members. Members in receipt of accounting records are required to maintain the privacy and confidentiality of said information. No member who has obtained copies or extracts of accounting records may disclose such records (or information contained therein) to a member or non-member, or take any steps to facilitate such disclosure. Publication of said records in any form would be viewed as disclosure. (e) Prior to terminating their membership of the Union, any member who holds any copies or extracts of accounting records, or information obtained therefrom, must return same to his or her branch secretary or destroy said records or information. (f) Should any member breach this Rule and thereby breach Union confidentiality, he or she shall be guilty of an offence and the Union reserve the right to initiate legal action in the civil courts and/or disciplinary action.”[122]The Chairman asked who were in favour of the proposed change to the financial constitution; 41 were for, none against. There were no abstentions. The motion was duly carried and formed part of the rules of the respondent. [146-151][123]The claimant had a meeting on 7 April 2017, to inspect the documents pursuant to the order of Mrs Justice Slade at the Employment Appeal Tribunal. Before the meeting commenced she was asked to sign her acknowledgement of the constitutional change but refused four times stating that she was there following the order of the Judge. The last day in which to comply with the Judge’s Order was the 7 April 2017.[124]We bear in mind that the Order made by Mrs Justice Slade was that the respondent should comply with the Order made by the Certification Officer “Eight weeks from the seal date of the Order of the Employment Appeal Tribunal be given or such other date as may be agreed by the parties or further Order.” The judgment was handed down on 9 February 2017. The expiry date, assuming that the parties were not present on the 9 February 2017 when the judgment was handed down, was 7 April 2017.[125]We find that there is some credence in the claimant’s assertion that, considering the speed with which the proposed amendment took place, that it was directed at her to restrict her use of the information as she was due to meet with the BASSA representatives on 7 April 2017. There is also the proposed letter the committee members agreed on 6 April 2017 that they were going to send to her threatening her with disciplinary action or civil action should she fail to comply with the proposed amendment.[126]We make note of the following statements made in Ms Elliott’s various postings. She wrote; “Unfortunately for Ms Mills, myself and the rest of the BASSA Reps will not let her selective amnesia go unchallenged any longer.” [331] “Yes, absolutely we had a top Human Rights QC because the Union recognised the dangers to the entire Unite movement of losing this case and did not want to do so, however we lost.” [333-334] “Ms Mills has taken BASSA to court and everything we have published is a matter of public record. We have a duty to protect our members’ interests and let you know what’s going on – once we were allowed to by the Certification Officer.” [336] “TU Reps – it has been ruled thanks to Ms Mills – are not covered by the Human Rights Act in terms of privacy – we have no right to privacy apparently because we are reps … politicians are elected and are covered but TU Reps are not.” [344][127]The BASSA Branch officers made no attempt to meet with the claimant to discuss her concerns and whether she had been involved in disclosing information about the Branch to the press and on social media. Instead what we have is an unhelpful dispute played out on social media in which she had clearly been singled out for unfavourable comment and criticism.[128]We have taken into account the written and oral submissions by Mr Bheemah, Counsel on behalf of the claimant and by Mr Cooper QC, Counsel on behalf of the respondent. We do not propose to repeat their detailed submissions herein having regard to Rule 62(5) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, as amended. In addition, we have also taken into account the authorities they have referred us to. Their written submissions can be referred to as their submissions in this case.
The law
[129]Section 64(1) Trade Union and Labour Relations (Consolidation) Act 1992, provides; “An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.”[130]Section 64(2) states; “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 by an official of the union or a number of persons including an official that...”[131]It then lists six prohibited conducts including, (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 any other detriment; and whether the individual is “unjustifiably disciplined” shall be determined in accordance with section 65.”[132]Section 65(1) provides that 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 –”[133]Then subsection 2 lists 12 protected activities which would constitute an individual being unjustifiably disciplined. Of relevance, it includes the following:- “(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 (whether passed) or any rule of law;” “(j) requiring the union to do an act which the union is, by any provision of this Act, required to do on the requisition of a member.”[134]Section 65(5) gives the union a defence. It states; “This section does not apply to an act, omission or statement comprising in conduct falling within subsection (2), (3) or (4) above if it is shown that the act, omission or statement is one in respect of which individuals would be disciplined by the union irrespective of whether their acts, omissions or statements were in connection with the conduct within subsection (2) or (3) above.”[135]Section 65(3) provides; “This section applies to conduct which involves the Certification Officer being consulted or asked to provide advice or assistance with respect to any matter whatever, or which involves any person being consulted or asked to provide advice or assistance with respect to a matter which forms, or might form, the subject-matter of any such assertion as is mentioned in subsection (2)(c) above.”[136]Subject to section 65(5), it is only necessary for the member to show that one of the reasons for the disciplinary action fell within section 65, Unison v Kelly [2012] IRLR 442, a judgment of the Employment Appeal Tribunal. In that case Supperstone J also held: “There is an important public interest in s.65(2)(c); rather than threatening the right of trade unions generally to administer their own affairs, it protects against the maladministration of union affairs contrary to the union’s own rules or the law. Thus, Article 11(1) is not violated by s.65(2)(c). Even if it infringed Article 11(1), it would be justified under Article 11(2). It is necessary in a democratic society to protect the rights of members of unions to hold their unions to account for breaching the union’s own rules, where the members act in good faith. The right to freedom of expression entitles a union member to reasonably express his opinions on internal union matters generally and the right to freedom of association must entitle members of the union to influence the policies and actions of their union. The disciplinary measures that had been imposed on the claimants plainly had had a serious effect on the exercise of their freedom of expression and their freedom of association and that of their members who had voted for them.”[137]The disciplinary act does not need to have been carried out in order to give the member the right to make a claim. It is sufficient that a determination is made that the member should be disciplined. In the case of Transport and General Workers’ Union v Webber [1990] ICR 711, the EAT held that a determination in accordance with the Act must be something that finally disposes of the issue. Accordingly, a recommendation by a member of an executive committee that a member be expelled did not amount to discipline as the recommendation still had to be implemented.[138]A determination is made on the date the union made its decision and not on the date of notification of it, National and Local Government Officers’ Association v Killorn and Simm [1990] IRLR 464, EAT. In that case Mrs Killorn was suspended from membership of NALGO on 10 July 1989 by her branch secretary for crossing a picket line during a pay dispute. On the same day a circular was sent to all branch members naming her and others as having been suspended for strike-breaking and that information on the pay claim or any other information relating to the branch or the union, should not be sent to those named. Mrs Simm was informed of her suspension from membership on 14 July 1989. A circular sent to branch members the previous day had included her name as one of those automatically suspended from membership for strike-breaking.[139]Mrs Killorn and Mrs Simm and the other suspended members, wrote to the branch chairman on 27 July 1989, questioning the action taken against them. They presented their claims to an employment tribunal alleging that they had been unjustifiably disciplined by the union under section 3 Employment Act 1988, the predecessor to sections 64 and 65 of TULR(C)A. An issue arose as to whether their claims were in time and the tribunal found in their favour. The tribunal held in deciding whether or not there had been a determination under section 3(5), that suspension from union membership was depriving the member of the benefits accruing from such membership, section 3(5)(d). In addition, the publication of the names of the strike breakers in a branch circular which was intended to cause embarrassment, could reasonably be described as subjecting them to a detriment such as in Mrs Simm’s case, section 3(5)(f). The union appealed.[140]The EAT held, Lord Mayfield giving judgment; “29. This appeal tribunal also agrees with the conclusion of the Industrial Tribunal that suspension from membership of a trade union inevitably means being deprived of the benefits which accrue from such membership. As we have said, the branch members were advised to withhold information on the pay claim and any other activities of the branch or the union from those who had been suspended for strike-breaking. In our view, the Industrial Tribunal were entitled to hold that suspension inevitably deprived a member from any benefits, services or facilities provided by the union. The purpose of being a member of a union is to provide a member with certain benefits, and if the member’s benefits are suspended we agree that it follows that the member has been deprived of those benefits. 30. As regards detriment, it is clear from the evidence of Mrs Duffy that one of the reasons for suspending Mrs Simm and the others concerned was to cause them embarrassment. Again we agree with the Industrial Tribunal’s conclusion that the publication of a member’s name in a circular or newsletter circulated to all branch members, naming the respondents and others as strike breakers, with the intention of causing them embarrassment, could reasonably be described as subjecting those individuals to detriment. In our view, whether or not a member suffered deprivation or detriment is the sort of question that Industrial Tribunals, with their expertise on industrial matters, are peculiarly suited to answer.”[141]“Subjected to any other detriment” in section 64(2)(f) is not defined under the Act. “Subjected to” is the wording in section 47B(1) Employment Rights Act 1996, a public interest disclosure detriment. It means “ ‘caused’ the ongoing detriment”, Abertawe Bro Morgannwg University Health Board v Ferguson [2014] IRLR 14, Langstaff J, President paragraphs 18-20.[142]Detriment means putting someone at a disadvantage. An unjustifiable sense of grievance would not be sufficient, Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, House of Lords, Lord Hope, paragraph 34.[143]A claimant must establish that there had been a disciplinary determination not more than three months before the date of the presentation of the claim, Wood J, Medhurst v N.A.L.G.O [1990] ICR 687, EAT, headnote.
Conclusion
[144]The claimant is a cabin crew member and there is no dispute that she was at all material times a member of the respondent union and is a member of the BASSA Branch.[145]Section 64(2) 1992 Act states that 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. We are satisfied, having regard to section 65(5), that the claimant’s conduct was in her request for the disclosure of the Branch’s accounts. She was asserting her right under section 30. Such conduct falls within section 65(2)(c) and (j).[146]Mr Beatty told us and we found as fact that the email correspondence sent to the membership of the Branch, were drafted and sanctioned by the Branch Committee members and they included officers. We are satisfied that they took the decision on or around the 3 March 2017, to refer to the claimant’s case and its impact on the union as well as on the trade union movement generally, in the email of the same date specifically targeting and blaming her for the “damage this will bring about to the entire Trade Union movement under this antiTrade Union Government….They will be grateful to Ms Mills.” Details of her case were also tweeted on 4 March 2017. There then followed further emails. In the email dated 5 March 2017, the Branch Committee wrote, “Thanks to Ms Karen Mills the entire Trade Union movement is now under financial scrutiny from anyone. That is her legacy and something that only she can live with, regardless of her original intention(s). No-one else is to blame for the outcome of that ruling, except maybe those that for their own ends encourage her to do so.”[147]In the email dated 13 March 2017, they wrote: “Ms Mills took a case to require branches to submit accounting records far in excess of the union to which they belong, in that she wished to inspect every aspect of expenditure behind the quarterly accounting figures. Individual receipts, bank accounts and reps’ personal, financial information etc.”[148]In the 14 March 2017 email the claimant was again referred to by name notwithstanding the fact that the Branch representatives accepted that she may not have been involved in disclosing information to the press. Her motives in calling the Branch to account were also questioned.[149]The emails were sent to the 9,000 membership and had the effect of isolating and blaming her for the lack of privacy protection afforded to trade union officers under the European Convention for the Protection of Human Rights and Fundamental Freedoms; for leaks to the press; for the weakening of the union, and for the weakening of the union movement.[150]In the email from Mr Adrian Smith sent on 27 March 2017 and in the one dated 6 April 2017, the implication is that the claimant was responsible for the leaks to the press and that a letter would be sent to her threatening action if the Branch’s financial records were disclosed.[151]It is, in our view, clear from Mr Beatty’s evidence and from the above extracts that a determination was made on or around the 3 March 2017 by Branch’s union officials regarding how the claimant should be treated. This was in response to the negative press and rumours. Thereafter the documents referred to above are consistent with there being further determinations on how to deal with the claimant. These placed her at a disadvantage in that she was named when there was no need to do so and blamed for the alleged weakening of the unions. She was isolated and a target for attack for having to exercise her right to inspect the accounts under section 30. We are satisfied, having regard to section 65(5), that the claimant’s conduct was her requesting the disclosure of the Branch’s accounts. Such conduct falls within section 65(2)(c) and (j).[152]We accept that the Branch’s representatives and officers wanted to address the rumours and negative press coverage. There was no evidence that they decided to formally discipline the claimant although there was a discussion about it which was not pursued. We are, however, satisfied that a determination was made on or around 3 March 2017 that she should suffer a detriment, in that the she would be identified and blamed for the consequences to the union and the union movement in having taken her case to the Certification Officer and the consequences for the union and officials considering the EAT judgment. The email of 3 March, the Twitter tweet and the subsequent emails referred to above specifically referred to the claimant by name rather than as a member of the Branch or of the union. We, therefore, have come to the conclusion that the claimant had been unjustifiably disciplined in respect of the email communications from the branch. Each communication sent to the membership followed a discussion by the union officers and amounted to a determination. As such section 64(2)(f) is satisfied and the claimant was unjustifiably disciplined. Paragraph 2a(i) of the List of Issues in relation to the specific correspondence referred to above, is well-founded.[153]If we are in error in concluding that the above communications constituted determinations and the claimant was unjustifiably disciplined, we do conclude, in the alternative, that a determination was made on or around 3 March 2017, when the Branch Committee decided that it was time to address the rumours and negative publicity by referring to the claimant in their communication with the membership. The subsequent communications referred to above, directly followed on from the decision taken on or around the 3 March. In that respect she was unjustifiably disciplined.[154]We accept that union officials have the right to engage in political and legal discourse in relation to matters affecting their interests and/or the interests of their union or the union movement. It is perfectly legitimate to do so and this is what the membership would have expected from their union, particularly when a union and/or its officials face a negative press and rumours on social media. There is, however, a boundary that any union should be wary of crossing and that is when the member becomes victimised by the body that is there to protect them. As Mr Justice Supperstone held in the Kelly case, “It is necessary in a democratic society to protect the rights of members of unions to hold their unions to account for breaching the union’s own rules, where the members act in good faith.” The claimant was exercising her right as a union member when she requested disclosure of the Branch’s accounts. It was not necessary to name and to target her in the Branch’s emails and in other communications in the manner in which the Branch did.[155]The “unspecified commentary in social media at page X” paragraph 2a(ii) of the List of Issues, while the tribunal accepts that posts on social media websites can generally be said to represent an individual’s point of view, we note that Ms Marie Louise Elliott, Worldwide Fleet Elected Representative for the BASSA Branch, consistently used the pronoun “we” and used information she was privy to in her capacity as a union representative. She was most anxious to put over the Branch’s points of view in her posts during discussions. We, therefore, conclude that these posts were determinations made by a union official acting in that capacity under s.64(2). The posts were detriments in that they increased the claimant’s isolation from her colleagues and attributed bad motives to her in bringing the Certification Officer case.[156]We make note of the following statements made in Ms Elliott’s various postings and repeat paragraph 126 in our judgment above in which she wrote:- “Unfortunately for Ms Mills, myself and the rest of the BASSA Reps will not let her selective amnesia go unchallenged any longer.” [331] “Yes, absolutely we had a top Human Rights QC because the Union recognised the dangers to the entire Unite movement of losing this case and did not want to do so, however we lost.” [333-334] “Ms Mills has taken BASSA to court and everything we have published is a matter of public record. We have a duty to protect our members’ interests and let you know what’s going on – once we were allowed to by the Certification Officer.” [336] “TU Reps – it has been ruled thanks to Ms Mills – are not covered by the Human Rights Act in terms of privacy – we have no right to privacy apparently because we are reps … politicians are elected and are covered but TU Reps are not.” [344][157]We have concluded that the claimant was unjustifiably disciplined in relation to Ms Elliott’s commentary.[158]The tweet on “Court Cases and The Public Record” on 4 March 2017, gave the link to the document circulated to the members on 3 March 2017 which referred specifically to the claimant and those involved in the Castillo v Unite case. Again, we conclude that this was a determination made on or around 4 March 2017 by the Branch officers that the claimant’s case should be referred to in a tweet. This decision was a detriment to her as it further isolated her from her colleagues. We remind ourselves that the nature of the work of the BASSA involves travel all over the world and communication via social media is the principal means of keeping in touch and be seen as part of a team. We again would make the point that it was neither necessary nor acceptable for her to be identified by name and blamed for the alleged damage done to the union and the union movement. We have come to the conclusion that she was unjustifiably disciplined, paragraph 2a(iii).[159]We have not found that the claimant was denied access to the BASSA or the respondent’s website. She had inputted her login details incorrectly and we were not satisfied that anyone had or could block her, paragraph 2a(iv). This aspect of her claim is not well-founded.[160]In relation to being denied access to the Unofficial XXXX Facebook Page, there was an apparent seamless transition from the Branch to Ms Malone on 22 July 2016. Existing members of the group transferred and those who wanted to become members had to apply to the administrator and follow a straightforward procedure to register themselves. This is a benefit to the Branch’s members as they are able to receive information and exchange ideas. A member can be disciplined by a trade union if he or she is deprived of access to any benefits, services or facilities which would otherwise be provided or made available to him or her by virtue of their membership of the union, s.64(2)(d).[161]We were not satisfied on the balance of probabilities, that there was a determination by the Branch Committee or any of its officers to deprive the claimant of this benefit. In any event, she complained that she was denied access since 22 July 2016 but her claim is that this was on 12 May 2017. We have come to the conclusion that the operative date is on 22 July 2016. She had up to 21 October 2016 in which she should have presented her claim and did not do so. There is no “course of conduct” or “continuing act” applicable in this case. This claim is out of time by a considerable margin and we do not extend time as she had access to advice from Mr Beaumont or with reasonable diligence she could have found out the time limit through the respondent’s officials or legal advisors or by accessing relevant websites, paragraph 2a(iv).[162]We have found that the change to the Branch’s constitution, the timing of the amendment and the way in which it was expedited, were targeted at the claimant. The Branch officials and that the Branch were anxious to implement the proposed amendment prior to the claimant inspecting their documents on 7 April 2017. There was a determination on the 3 April 2017. The branch officials only disclosed the nature of the proposed amendment on the day of the meeting on 3 April 2017. Out of the 9,000 members only 41 attended the meeting. The claimant was named in the proposed draft letter to be sent to her with the threat of disciplinary and/or court action should she breach the provisions in the amendment which were in themselves quite restrictive as they do not allow for the claimant to discuss the documents with her legal advisors. Accordingly, she has suffered a detriment as she was targeted, isolated from the membership and restricted in her use of the information, paragraph 2a(vi).[163]In relation to the defence raised by the respondent under s.65(5), namely that the respondent would have disciplined a member in similar circumstances. There was no evidence that the disclosure of the accounts to the press was done by the claimant. It was by Mr Beaumont. The claimant was clearly part of the Certification Officer case in Castillo v Unite as she was one of the claimants. There was no evidence that she had been involved in any of the rumours which were spread about the BASSA Branch officers. She would, therefore, not have been disciplined. All she did was to raise her concerns under s.30 TULR(C)A before the Certification Officer which was a legal route available to her. We have come to the conclusion that a member would not have been disciplined in similar circumstances.[164]The case will be set down for a remedy hearing on a day that is mutually convenient to the parties and the tribunal.
Conclusion
[1]The tribunal has jurisdiction to hear and determine the claimant’s application for compensation under section 67 Trade Union and Labour Relations Act 1992.[2]The tribunal has jurisdiction to hear and determine the claimant’s application for compensation for injury to feelings and aggravated damages.[3]The total sum awarded to the claimant for being unjustifiably disciplined is £38,654.[4]The respondent is ordered to pay the claimant’s costs in the sum of £2,500. The total sum awarded to the claimant is £41,154.
Conclusion
[1]The tribunal in a reserved judgment on liability, held that the claimant was unjustifiably disciplined by the respondent. A remedy hearing was listed to take place on 29 January 2020.[2]On the day of the hearing, Mr Cooper QC, on behalf of the respondent, submitted that the tribunal did not have jurisdiction to hear and determine the claimant’s application for compensation as she had not presented a claim form in accordance with the provisions of section 67, Trade Union and Labour Relations (Consolidation) Act 1992, “TULR(C)A”.[3]As Mr Bheemah, counsel for the claimant, was not prepared to respond in detail to Mr Cooper’s submissions, the case was adjourned to 15 May 2020. The claimant was ordered to send her submissions on the jurisdictional issue to the respondent and the tribunal by not later than 4.00pm 13 May 2020. Her application for costs following the hearing having to be adjourned, would be determined at the conclusion of the remedy hearing.[4]Due to the Covid-19 pandemic the hearing could not proceed on 15 May 2020 and was relisted for 2 days on 27 and 28 May 2021.
The issues
[5]The issues are as set out in paragraph 2 of Mr Cooper’s written submissions. We, however, supplement them. They are as follows: –5.1 has the application been properly instituted;5.2 does the minimum award under section 67(8A) TULR(C) apply;5.3 does the tribunal have power to make an award in respect of injury to feelings, or other non-financial loss, under section 67; and5.4 having regard to the answers to questions 5.1 and 5.2, what is the appropriate award in this case?5.5 Should the tribunal award a sum for aggravated damages?5.6 What is the extent of the claimant’s loss of earnings?5.7 Whether the tribunal should award costs for the hearing on 29 January 2020 having been adjourned?
The evidence
[6]The tribunal heard evidence from the claimant. No oral evidence was called on behalf of the respondent. The parties adduced a joint bundle of documents comprising of 99 pages. In addition, there was a combined authorities bundle. Findings of fact[7]The respondent’s treatment of the claimant stemmed from her request to see the full branch accounts as a member of the BASSA branch and had a statutory right of access. She felt that the respondent’s members should know exactly how their money was being spent, but her requests for access were repeatedly ignored, and she was left with no option but to refer the matter to the Certification Officer who found in her favour, allowing her access to the branch accounts. The respondent’s appeal to the Employment Appeal Tribunal, “EAT”, was dismissed. She still has not been provided with the full accounting information she is entitled to see.[8]The respondent unfairly considered her as the person responsible for the damaging publicity against it following the Certification Officer’s decision and the outcome of the EAT judgment. She also had been subjected to an ongoing campaign of bullying and harassment which had the effect of isolating her from the membership. The respondent’s actions were motivated by a desire to sully her name, impugn her motives and her mental health. The emails sent by it from 3 March 2017 onwards, were false and an attempt to dehumanise her. She had no means of countering the false narrative and no ability to defend herself against the smears. Her fellow union members began to display coldness and even contempt towards her. She felt like a pariah in the membership.[9]There were negative conversations on Facebook about her which escalated to a level she described as viral. She was portrayed as a villain whose motive was to destroy the union. She could not believe that people were discussing her in such terms. She stated that it was terrifying to witness the viral spread of such views of hatred and hostility towards her. Colleagues she had known for over 30 years, joined in malicious discussions about her. She had no one to protect her or the resources to negate the damage done to her previously unblemished reputation.[10]She began to fear for her personal safety and visited at either the end March or early April 2017, Hounslow Police Station, where she spoke to a sergeant and provided him with copies of the 10 emails the respondent had sent. She described to the sergeant the effect the emails had on her and that she feared for her own personal safety. She was given a crime reference number and told to keep her mobile phone with her at all times, ensuring that it was fully charged. She was advised to refer the matter to her employer, British Airways, “BA”, as it had a duty of care towards her and is obligated to protect her well-being while at work. Despite lodging a grievance at work, she said that her employer failed to prevent the bullying and harassment she had been subjected to. We do not make any findings of fact on this as BA was not a party in these proceedings.[11]The change to the respondent’s BASSA constitution in April 2017, was to prevent her from speaking freely about the accounting records. On 7 April 2017, Mr Adrian Smith, shouted at her and demanded that she should sign a letter confirming her agreement to the change in the constitution, which she refused to do. She was wrongly accused by him of talking to the media about the accounts. She told the tribunal that she felt “the high levels of animosity” towards her during the meeting, and was “shocked and distressed at the lengths to which the respondent had gone in order to try and silence me.”[12]From 3 March 2017, the respondent sent a series of emails to its membership at large, 10,000 individuals, frequently referring to the claimant by name in derogatory and unpleasant terms. She had no way of defending herself against the repeated smears and character assassination. Her name became infamous at work. She had previously been an ordinary employee going about her job in the usual way under relative anonymity. As a result of the emails, she described there being a “whispering campaign” against her at work. Crew members would sometimes touch her name badge and say things, such as, “oh, you’re Karen Mills?” “How do you spell your name, or should I leave out the Mills?” “How does it feel to be the Judas of the Union?” “Are you tempted to change your name.” “ Why did you feel the need to question the Union?” “ Why don’t you do the honourable thing and leave the Union.” “ What were your motives?” “ Did you get what you were looking for then?” Such comments left her feeling exposed, vulnerable and depressed. The bullying and negative comments became relentless and she no longer felt part of a team at work, and had lost the camaraderie that she had once enjoyed with her work colleagues.[13]She named other individuals who had taken steps to isolate her by alleging that she was on a mission to destroy BASSA and one tagged her ensuring that she got that person’s communications. That individual, according to the claimant, perpetuated a lie that she was part of an extreme left-wing activist group called, ‘Workers Power’ which uses violence and endorses armed uprising by the working class.[14]She told the tribunal that her ordeal continues to this day. She has kept her full name on her name badge because, she said, this is the requirement of BA. There is no way for her to escape recognition at work as her name appears on rosters 28 days before flying. Her name also appears on crew briefings and on general declaration forms. Her personal details are stored in the respondent’s computer systems. She has refused to change her name on her name badge as suggested, she said, by her manager. To this day she is still asked questions by colleagues once they see her name on her badge. This has the effect on her of feeling nervous and vulnerable. She has a constant fear that someone motivated by malice may place something in one of the bags under her charge and would regularly check the bags to ensure that they are still in the same state as she had left them.[15]In order to reduce the risk of reprisals, she had to request a ‘No-fly’ in respect of every union representative she knew to be involved in sending the emails. She is unable to identify all of those involved and is in a constant state of high alert, worrying about who amongst her colleagues may do her ill. She feels that she would be looking over her shoulder until she retires. The ‘No fly’ has affected her ability to swap shifts freely. An App is used to arrange such things like shift swaps but with 15 thousand crew members having signed up to the App, it has significantly restricted her ability to change her rota.[16]In relation to her home life, although her husband knew about the problems she was experiencing at work, she had not told him the full extent of it. He had seen a couple of emails the respondent sent but she hid everything else from him, including the online attacks and bullying. This had left her feeling alone and depressed in her own home.[17]Her eldest daughter came across a tweet by the respondent that contained a link to a derogatory email about her, the claimant. It was circulated to all 10,000 BASSA members and would have been available to all of Unite’s members, about 1,000,200 people. Her daughter commented on the tweet and began to ask questions about it. This was unfortunate as the claimant had been trying to shield her from the problems she was experiencing at work. She then had to tell her daughters about her work issues who were very upset and concerned for her. They had, inadvertently, been drawn into her workplace issues and were worried about her. They wanted the claimant to leave her job and move to a new work environment but it was not easy for her to simply switch jobs because she is a single mother with financial commitments and this has been the only career she has known. They also had to cope with her divorce from their father. She said that her eldest daughter had to attend counselling as she was so upset about everything that had happened. (108-108)[18]As regards the impact on her marriage, because of the toxic environment at work causing her to become stressed and unwell, it affected her relationship with her husband, who found it difficult to cope with the fact that she had become withdrawn and depressed. They began to argue a lot, and she felt as if each argument pushed them a little further apart. The marriage irretrievably broke down on or around February 2018. She is unable to say whether the issues at work were the sole cause of the breakdown, but she firmly believes that the respondent’s actions were a significant contributory factor.[19]To add to her problems, her mother was involved in a major accident which left her tetraplegic. This had a significant impact on the family. The respondent’s actions increased the pressure she was under to the point that she felt it was unbearable. It never considered that its actions may impact on her home and family life. She stated that she felt as if she was living in a pressure cooker because she had so many things on her plate.[20]Her health has suffered as a direct consequence of the respondent’s actions. It was extremely difficult for her to deal with the isolation and attacks at work. Colleagues are now distant, whereas previously she would be invited to go for meals, drinks or on shopping trips. Such invitations now a few and far between. Many people now avoid her company as a direct result of the respondent’s actions. She was on sick leave due to stress from 15 to 21 April 2017 and from 21 May to 16 June 2017, five weeks. We were not referred to any medical reports. She found it difficult to return to work knowing that the whispering campaign against her was continuing. She did not think about submitting a fit note. She told BA at an Absence Review Meeting, on 9 January 2018, that the reason why she was off work was stress. She realises that nothing would be the same again for her. She lodged a grievance citing the behaviour of four employees. Three were upheld. The fourth, concerning Ms Louise Elliott, was not upheld.[21]Flying Allowance would be given depending on the country flying to. She said that for a five day trip she could get about £400 in allowances. She is a Cabin Service Leader on a 50% full-time contract. Her gross annual salary is £22,904.[22]She asserted that the respondent has turned her life upside down by pressing a few buttons on a computer keyboard.[23]She has been a paid-up union member for 34 years but no longer has any confidence that it will protect her when needed. She stated that, effectively, her union dues of £21.44 per month are worthless.[24]The respondent had not been in contact with her to either revoke or reverse the determination, and there has been no apology.[25]In the claim form, she claims “compensation or damages as the court sees fit”. (41)[26]In paragraph 164 of the liability judgment, the case was set down for a hearing on remedy on a day convenient to the parties. (33)[27]On 6 December 2018, after receiving the judgment sent on 5 September 2018, the claimant sent her request for a remedy hearing to the respondent’s representatives and the tribunal citing section 67(1) 1992 Act. (68) Submissions[28]As the issues raised by the respondent goes to jurisdiction and if its arguments are correct, it would change the way in which claimants and Employment Tribunals approach the issue of remedy in such a case. We have replicated, substantially, the written skeleton arguments of Mr Cooper QC and Mr Duggan QC below. As they were converted from Pdf to Word, the formatting is not strictly in accordance with their layouts. The respondent[29]Mr Cooper submitted the following: “Introduction 1. This is the hearing of a purported application by the Claimant for an award of compensation under section 67 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULR(C)A’), in respect of unjustified discipline contrary to s66, to which the Tribunal found she was subjected by the Respondent in a ‘Judgment’). 2. The following questions arise for determination:(1) Has this application been properly instituted?(2) Does the minimum award under s67(8A) apply?(3) Does the Tribunal have power to make an award in respect of injury to feelings (or other non-financial loss) under s67?(4) Having regard to the answers to questions (1) and (2), what is the appropriate award in this case? The legislative scheme 3. In order to consider some of the issues of law and statutory interpretation that arise, it is necessary to consider TULR(C)A, s67 within the overall legislative scheme governing unjustified discipline by a trade union: 3.1. Section 64 defines what constitutes being ‘disciplined’ by a trade union and it is relevant to note that a number of the categories of ‘discipline’ may clearly give rise to financial loss: 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 official1 of the union or a number of persons including an official of the union or a number of persons including an official that – … (b) he should pay a sum to the union, to a branch or section of the union or to any other person, (c) sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a branch or section of the union, should be treated as unpaid or paid for a different purpose, (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, … and whether an individual is “unjustifiably disciplined” shall be determined in accordance with section 65. 3.2. Section 65 then deals with the circumstances in which a member who has been disciplined as defined in s64 is treated as having been unjustifiably disciplined. It is not necessary to rehearse those provisions for present purposes: the Tribunal has already determined that the Respondent’s disciplining of the Claimant fell within those provisions. 3.3. Section 66 provides for a right for a union member who claims they have been unjustifiably disciplined to complain to an employment tribunal, and for the primary remedy to be a declaration: 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. … (3) Where the tribunal find the complaint well-founded, it shall make a declaration to that effect. 3.4. Where a complaint under s66 has been upheld and a declaration made, it is then necessary for the member to make a further application to an employment tribunal under s67 in order to claim compensation: 67. Further remedies for infringement of right (1) An individual whose complaint under section 66 has been declared to be well-founded may make an application to an employment tribunal for one or both of the following – (a) an award of compensation to be paid to him by the union; (b) an order that the union pay him an amount equal to any sum which he has paid in pursuance of any such determination as is mentioned in section 64(2)(b). (3) An application under this section shall not be entertained if made before the end of the period of four weeks beginning with the date of the declaration or after the end of the period of six months beginning with that date. …(5) The amount of compensation awarded shall, subject to the following provisions, be such as the employment tribunal considers just and equitable in all the circumstances.(6) In determining the amount of compensation to be awarded, the same rule shall be applied concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law in England and Wales or Scotland.(7) Where the employment tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.(8) The amount of compensation calculated in accordance with subsections (5) to (7) shall not exceed the aggregate of— (a) an amount equal to 30 times the limit for the time being imposed by section 227(1)(a) of the Employment Rights Act 1996 (maximum amount of a week's pay for basic award in unfair dismissal cases), and (b) an amount equal to the limit for the time being imposed by section 124(1) of that Act (maximum compensatory award in such cases); (8A) If on the date on which the application was made – (a) the determination infringing the applicant’s right not to be unjustifiably disciplined has not been revoked; or (b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination, the amount of compensation shall be not less than the amount for the time being specified in section 176(6A). 4. The scheme of the legislation is therefore to provide for a finding and declaration of liability under s66 as the primary form of relief. 5. A claim for compensation under s67 may not then be presented until 4 weeks after the declaration under s66 and must then presented within 6 months of that date (s67(3)). This is to afford the union an opportunity to consider what (if anything) can be done in order to revoke the unjustifiable discipline and/or take steps to reverse anything done to give effect to the unjustifiable discipline. 6. After that period, the member may then make a further application to an employment tribunal under s67 and, if the union has not taken steps which it could have done to revoke and/or reverse the unjustifiable discipline, the statute provides for a minimum award (ss67(8A) & 176(6A)). The applicable minimum if that were to apply in this case would be £8,9392. 7. Any award of compensation under s67 is also subject to a maximum calculated in accordance with s67(8). The applicable maximum in this case is £14,370 plus 1 year’s gross annual salary at the rate which applied in the 2016-17 financial year3. (1) Has this application been properly instituted? 8. In the course of making final preparations for this hearing, the Respondent’s leading counsel requested copies of the claim form and response for the claim under s67. As a result of those enquiries, it has become apparent that in fact no new claim form has been presented: the Claimant sent an email on 6 December 2018 [xx] purporting to apply for an award under TULR(C)A, s67 and thereafter the Tribunal has listed this hearing. In light of this – and since the Tribunal is a creature of statute with a limited jurisdiction – it is necessary to raise the question whether this application has been properly instituted such that the Tribunal has jurisdiction to hear it, in order to ensure that the Tribunal does not act outside its jurisdiction. 9. As noted above, the legislative scheme requires a fresh application to be issued. This is not an application within the existing proceedings (to ‘the’ employment tribunal which heard the s66 claim) but a fresh application to ‘an’ employment tribunal. 10. The rules in this regard are clear: 10.1. Pursuant to section 7(3ZA)(a) of the Employment Tribunals Act 1996, tribunal procedure regulations may prescribe requirements in relation to any form which is ‘required… to be used for the purpose of instituting… proceedings before employment tribunals’; 10.2. Rule 1 in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the ‘Tribunal Rules’) defines a ‘complaint’ as: ‘anything that is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the Tribunal.’ 10.3. A claim ‘claim’ is defined as ‘any proceedings before an Employment Tribunal making a complaint’. 10.4. Pursuant to rule 8, any claim ‘shall’ be started by presenting a claim using a prescribed form and pursuant to rule 10(1) a claim ‘shall’ be rejected if it is not made on a prescribed form or contain the specified information. 10.5. For the purposes of the Tribunal Rules, therefore, there is a distinction between something which is referred to as an ‘application’ in an enactment which confers jurisdiction on the Tribunal, and an ‘application’ within existing proceedings under rule 30. The former is a ‘complaint’ which must be presented as a ‘claim’ in accordance with rule 8; the latter is an application in existing proceedings which may be made either in writing or in a hearing and for which there is no particular prescribed form. 10.6. There can be no doubt that TULR(C)A, s67 is the former. Not only is that apparent from the face of the statute, but it is also consistent with the scheme of the legislation and makes good sense: the right to claim compensation is a separate right (akin to a protective award under TULR(C)A, s192) which is dependent upon the later factual circumstances which pertain after 4 weeks following the initial declaration on unjustifiable discipline after the union has had an opportunity to consider what can be done to revoke/reverse the measures in question or their effects. It is right that there should be a need for the Claimant to plead the new claim by reference to those circumstances, and a requirement for the union then to respond setting out what it has done to revoke/reverse the effects of the discipline and/or why it has not been possible to do so. If an application under s67 were to be treated as simply a case management application within the existing proceedings – even if that were not contrary to the plain meaning and effect of the Tribunal Rules – the difficulty is that there would be no prescribed elements of the application at all and no necessary opportunity (or requirement) for the union to respond prior to a hearing. 11. An application under s67 therefore had to be instituted by way of presenting a fresh claim, on the prescribed form. The Claimant has not done that and accordingly the Tribunal has no jurisdiction to entertain her application. Moreover, there is no power under s67(3) to vary or extend the 6-month limitation period for any reason, nor does the discretion to waive or vary procedural irregularities under rule 6 apply in respect of the requirement to issue a claim on a prescribed form under rule 8(1). Therefore, the Tribunal has no jurisdiction to hear this application, no power to waive or vary the applicable rules and requirements and option but to dismiss it. (2) Does the statutory minimum apply in this case? 12. In this case, the nature of the acts which the Tribunal held amounted to unjustifiable discipline is such that it is not in practice possible to ‘revoke’ them or ‘reverse’ their effects. The communications and steps in question have in fact been made or done and have taken effect. History and facts cannot be re-written. Indeed, anything that might be done to address those matters publicly would in fact simply draw further attention to them. 13. There is, therefore, a question of statutory interpretation to be considered: is subsection 67(8A) to be construed as meaning that the minimum applies because steps have not been taken to revoke and/or reverse the measures in question even where it is not in practice possible to revoke or reverse them, or is it to be construed as applying only where there are steps which would in practice revoke and/or reverse the effects of the measures which the union has failed to take? 14. The latter is the better interpretation. It is indicated by the fact that the two limbs of subsection 67(8A) are alternatives and by the fact that the second alternative is qualified by the reference to ‘all steps necessary’, i.e. – 14.1. the union is required either to revoke the measure in question or to reverse its effects, indicating that the focus is on what is practicable in order to row back the measure; and 14.2. if it is not practicable to ‘revoke’ the determination under alternative (a) (because it has already been carried into effect) then the union must take ‘all steps necessary’ to reverse its effects, but a step cannot be ‘necessary’ if it is in fact impossible: Parliament cannot be taken to have legislated for the impossible. 15. Therefore, the better interpretation of subsection 67(8A) is that the minimum award only applies if there are steps which would in practice revoke and/or reverse the effects of the measures which the union has failed to take. 16. Since it would in practice be impossible to revoke and/or reverse the effects of the measures in this case, the minimum award under subsection 67(8A) does not apply. (3) Does the Tribunal have jurisdiction to make an award for injury to feelings or other non-financial loss under s67? 17. Pursuant to subsection 67(5) the amount of compensation shall (subject to the other provisions of s67) be such as the Tribunal considers just and equitable in all the circumstances. It is clear, therefore, that the award must be of compensation, not simply at large. Like the term ‘loss’ that term is capable of embracing both narrower and wider meanings and what it covers is an exercise of statutory interpretation having regard to the particular context (cf Dunnachie v Kingston Upon Hull City Council [2004] ICR 1052, HL, 1060D-E per Lord Steyn). 18. The language of subsection 67(5) mirrors, so far as it goes, both 18.1. the language of unfair dismissal compensation under section 123 of the Employment Rights Act 1996 (‘ERA’), which has been held not to cover non- pecuniary loss (Dunnachie), and 18.2. the language of unlawful detriment and other similar provisions (e.g. TULR(C)A, s149; ERA, s49), which has been held in some circumstances to cover non-pecuniary loss (e.g. Brassington & others v Cauldron Wholesale Ltd [1978] ICR 405, EAT, 413E-141D per Bristow J; Cleveland Ambulance NHS Trust v Blane [1997] ICR 851, EAT, 858E-859G per HHJ Peter Clark) and in others not (e.g. Santos Gomes v Higher Level Care Ltd [2018] ICR 1571, CA, paras 61-66 per Singh LJ). 19. However, subsection 67(5) differs from both of those formulations in that it contains neither the reference to ‘loss’ which was the focus of the House of Lords’ decision in Dunnachie, nor the reference to the ‘infringement’ complained of which has been one basis for suggesting that non-pecuniary loss is covered (see Blane). 20. Moreover, the question of whether non-pecuniary loss is recoverable under TULR(C)A, s67 (or its predecessors) was expressly left open by the EAT in Bradley & others v NALGO [1991] ICR 359, EAT, 368E-G per Wood J. (It was assumed that such loss is recoverable in Massey v Unifi [2007] IRLR 902, CA, but the point was not argued.) 21. Therefore, there is no authority binding on this Tribunal on the question, and it must be approached from first principles as a matter of statutory construction. 22. The better construction is that compensation under TULR(C)A, s67 does not cover non-pecuniary loss, for the following reasons: 22.1. The phrase ‘just and equitable’ is not a catch-all phrased that is apt to bring non-pecuniary loss within scope: Dunnachie, paras 23-6 per Lord Steyn; Santos Gomez, para 64 per Singh LJ. 22.2. These compensation provisions are most closely based on the unfair dismissal provisions: adopting the same maximum awards. Since union rules are fundamentally contractual in nature this jurisdiction is also closely related to breach of contract. In such claims, the normal position and most natural interpretation is that compensation does not cover non-pecuniary loss (Dunnachie, paras 16-18 per Lord Steyn; Santos Gomez, paras 31-33 per Singh LJ). 22.3. Unlike in employment ‘detriment’ claims, where if nonpecuniary loss could not be compensated there may be no effective remedy (cf Santos Gomez, para 66(v) per Singh LJ), here Parliament has expressly provided for a minimum award which applies if the union does not revoke/reverse the effect of the unjustifiable discipline. Thus, the way the statutory scheme works is that the primary (effective) remedy is a declaration followed by revocation/reversal. If that is not done then a statutory minimum amount of compensation is payable. In any event, if there is financial loss in addition, that may be recovered under s67. There is no need for non-pecuniary loss to be recoverable for there to be an effective remedy. 22.4. The reference to the ‘infringement’ complained of, which are the basis on which non-pecuniary loss has been held to be covered in (some) ‘detriment’ claims (see Blane) are absent from s67. Therefore, there is no basis for extending what would otherwise be the more natural, narrower meaning. 22.5. Similarly, there is no express conferral of the power to award injury to feelings as under the Equality Act 2010 (cf Santos Gomez, para 65 per Singh LJ): again reinforcing the proposition that the default for employment tribunal in the absence of specific language conferring a power to make an award for injury to feelings or other non-pecuniary loss is that such losses are not within the scope of recoverable compensation. (4) What is the appropriate award? 23. The following general points are to be noted: 23.1. The Tribunal has no jurisdiction to rule upon, or award compensation in respect of, any alleged failure to afford the Claimant access to union records that she is entitled to see (to which references are made in the Claimant’s statement for this hearing [C remedy w/s, paras 2-3]): those are matters for the Certification Officer, if anyone, and in fact the CO has decided that there is nothing further to investigate in that regard. 23.2. No medical evidence or even medical records have been served in support of the Claimant’s assertion that she was made unwell as a result of the unjustified discipline to which she was subjected. If that claim were to be advanced, the Claimant ought (as a matter of fairness) to have made that clear and sought directions for the service of evidence in support, which the Respondent would then have a reasonable opportunity to consider and decide whether to ask questions of the expert or seek its own evidence in rebuttal. That not having been done, the Tribunal is in no position to make proper findings on questions of causation, injury or prognosis. 23.3. Any award must be for injury caused by the actual acts of unjustified discipline upheld by the Tribunal. The Respondent is not liable for the acts of third parties which break the chain of causation. 24. Turning, on that basis, to the particular heads of loss claimed, since causation and injury have not been established no sums can be awarded for alleged injury or financial loss alleged to arise from sickness absence (during which the Claimant would in any event have received sick pay from her employer). 25. If (contrary to the submissions above) the Tribunal holds that it does have power to make an award for injury to feelings, the relevant updated4 bands are: 25.1. Lower band: £800 to £8,400 25.2. Middle band: £8,400 to £25,200 25.3. Upper band: £25,200 to £42,000 26. The appropriate award in this case is at the lower end of the middle band. (Compare this case with the much more serious discipline and impact in Massey, for which an award at the upper end of the middle bracket was made.) 27. As to aggravated damages, if (contrary to the submissions above) the Tribunal determines that it does have power to make an award for non-pecuniary loss, the following principles apply when determining whether any award in respect of aggravated damages should be made at all and, if so, how to assess any such award: 27.1. Aggravated damages are an aspect of injury to feelings compensatory not punitive and may be awarded where the manner in which the unlawful act was done, the motive for doing it, or the subsequent conduct of the respondent in relation to the unlawful act were particularly high handed, malicious, insulting, oppressive or otherwise contumelious, such that they aggravated the distress to the claimant (Commissioner of Police for the Metropolis v Shaw [2012] ICR 464, EAT, paras 15-16 & 20-22 per Underhill J) 27.2. Since they are an aspect of injury to feelings and compensatory not punitive, any assessment of aggravated damages must take account of the overall award for injury to feelings and ensure that it is proportionate to the totality of the suffering caused to the claimant (Shaw, para 23 per Underhill J). The Tribunal must take care to ensure that it assesses the overall award by reference to the injury to the Claimant and not by reference to what it thinks is appropriate by way of punishment or in order to give vent to its indignation at the Respondent’s conduct (Shaw, para 24 per Underhill J). 27.3. It may not, therefore, be necessary for the Tribunal to award aggravated damages as a distinct head of loss at all, and if it does so it is generally desirable to formulate the award as an overall amount for injury to feelings, incorporating an identified amount of aggravated damages and identifying the specific aggravating or mitigating factors to which the Tribunal has attached particular weight. This approach will help to focus attention on the proper, compensatory purpose of the award and ‘reduce the risk of the tribunal being seduced into introducing a punitive element by the back door’. It will also help to ensure that the proportionality of the overall award for non-pecuniary loss is properly considered (Shaw, paras 25 & 27-8 per Underhill J). 28. The Tribunal has held that the Respondent was fundamentally entitled to defend itself in relation to allegations and rumours that were circulating [Judgment, paras 152 & 154], but that it went too far in specifically naming the Claimant as this led to her being identified and isolated by colleagues [Judgment, paras 153, 154, 158, 162]. Those factors are therefore inherent in the core finding of unjustifiable discipline and its effects on the Claimant: there is nothing extra which requires a separate or additional award in order to compensate the Claimant. 29. The appropriate approach in this case (subject to the question of whether the Tribunal has power to make an award in respect of non-pecuniary loss at all) is therefore simply to assess a single sum in respect of the impact on the Claimant of the unjustified discipline. As set out above, the appropriate level of award is at the lower end of the middle band.[30]As it happens, that broadly coincides with the minimum award, so if the Tribunal decides that it does have jurisdiction to make an award for injury to feelings but accepts power middle band as the appropriate level, it may be that it will not need to determine the issue concerning the application of the statutory minimum. Conclusion[31]For the reasons set out above, the Tribunal is obliged to dismiss this purported application because it has not been properly instituted as a claim under rule 8.[32]Alternatively, the Tribunal is invited to hold that the minimum award under subsection 67(8A) does not apply and that it has no power to make any award in respect of non- financial loss. Therefore, no compensation should be awarded under s67.[33]In the further alternative, an award of or in the region of the minimum award is the appropriate sum.” 30. The following are Mr Cooper’s footnotes: “1 ‘Official’ is defined in TULR(C)A, s119 and it is accepted that the BASSA Branch officials and workplace representatives fall within this definition. 2 The ‘appropriate date’ for determining the relevant sum for the purposes of an application under TULR(C)A, s67 is the date of the determination infringing the applicant’s right (see SI 2017/175, art. 4(2)(a)). The relevant determinations which the Tribunal held amounted to unjustifiable discipline occurred prior to 6 April 2017 [Judgment, paras 151- 8 & 162]. Therefore, the applicable sum is £8,939, set by SI 2016/288, art. 3 & sched. 3, para 3. 3 As set out in footnote 2 above, the relevant statutory caps are those set by SI 2016/288, art 3 & sched. 3. The applicable limit on a week’s pay under Employment Rights Act (‘ERA’), s227(1)(a) is therefore £479 and 30 times that limit is £14,370. The applicable limit on unfair dismissal compensatory awards under ERA, s124(1) is 52 weeks’ pay (uncapped). The relevant date for calculating a week’s pay is not clear: under ERA, s226(3) & (6), for the purposes of s124 in an unfair dismissal claim it would be the EDT, but of course there is no EDT in this case. However, that being the date when the cause of action accrued, the equivalent date for present purposes must be the date when the unjustifiable discipline occurred. Thus the relevant sum under s124(1) is 1 year’s gross salary for the year 2016-17. This is still to be confirmed. 4 Presidential Guidance: Employment Tribunal awards for injury to feelings and psychiatric injury following De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, para 10 The claimant 31. Mr Duggan QC submitted on behalf of the claimant that the assertion by the respondent that the tribunal does not have jurisdiction to hear remedy is based on a “fallacious” interpretation of sections 64 to 67 of the ERA, the Employment Tribunals Act 1996 (‘ETA 1996’) and the schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘the Rules’). A proper construction of these enactments demonstrates that the tribunal does have jurisdiction. Moreover, it is instructive to compare the way in which TUL(C)RA 1992 deals with cases where it is necessary for there to be a second action and compare this with section 67. 32. He submitted that given that section 66 is a new claim, the conciliation provisions apply. They do not apply to section 67. 33. He considered sections 64 to 67 and submitted that the whole point of section 67 is that it provides further remedies, in particular, where the union has failed to revoke the determinations or to take any steps necessary to reverse what had been done. The Claimant must wait for four weeks to see if the union, in this case Unite, takes steps to reverse the wrongdoing and thereafter can make an application for compensation. In the present case Unite have made no effort to take any “steps” so that the compensation must be the amount, as a minimum, specified in section 176(6A) of £9787, as well as the other compensatory claims that are made. He continued, “11. It is apparent from the original section 67 that there was the anomalous position that the claim for compensation had to be brought before the Employment Appeal Tribunal. Since there were no proceedings instituted in the EAT an application would have to made separately to the EAT. Once the jurisdiction of the EAT was revoked and the Employment Tribunal having dealt with the issue of declaration, could the deal with remedy; there is no need for separate proceedings since the claim has already been instituted in the tribunal. 12. As Harvey notes at Unjustifiable Discipline B-2895 and B2911: The remedy for a member or former member unjustifiably disciplined by the union is by way of complaint to an employment tribunal for a declaration (TULR(C)A 1992 s 66). Initially that is his only remedy. He must then wait at least four weeks to give the union time to consider its position. Thereafter he may return to the tribunal seeking money compensation or reimbursement of any fine or penalty paid, or both (TULR(C)A 1992 s 67). B-2895 Having obtained his initial declaration, the claimant may, if he so wishes, return to the tribunal seeking an order for money compensation or the repayment of any 'unjustifiable' fine or penalty (TULR(C)A 1992 s 67(1)). He may not apply for such an order until four weeks after the initial declaration (s 67(3)), so as to give the union time to consider its position and to react to the declaration. He must, however, apply before the end of the period of six months beginning with the date of the initial declaration (s 67(3)). Those are absolute time limits. There is no power to vary them. B-2911 13. It is submitted that there is no need to issue fresh proceedings when the complaints are in the original ET1 and the Claimant has waited the requisite 4 weeks after a declaration has been made. The whole point about this unique procedure is that it is to give the Union the opportunity to rectify, in some way, its wrongdoing and if this is not done, as in this case where Unite has lamentably failed to make any effort to rectify the position, the Claimant can then return to the Tribunal to seek compensation. 14. The use of the phrase “an employment tribunal” in section 76 [67] is neither here nor there. Indeed, there is no reason why the Tribunal originally granting the declaration would have to deal with compensation; though that would be usual. The Employment Tribunals Act 1996 and the Rules 15. Unite refers to section 7(3ZA)(a) of the ETA 1996. This is merely the enabling section. It casts no light on the use of the words “application to an employment tribunal”. However, it should be noted that the phrase “an employment tribunal” is used in other contexts where there are already proceedings. For example, section 7 refers to rules “for enabling an employment tribunal on the application of any party to the proceedings before it” to order disclosure. There is no significance in the use of the prefix “an” and opposed to “the”. 16. Nor do the Rules dictate the outcome that Unite contend for. 16.1. Rule 1 does not contain a definition of an “application”. 16.2. “claim” is defined as “any proceedings before an Employment Tribunal making a complaint”. 16.3. “complaint” is defined as “anything that is referred to as a claim, complaint, reference, application or appeal in any enactment which confers jurisdiction on the Tribunal.” 16.4. By regulation 8 a “claim” may be started by presenting a completed claim form and regulation 10 sets out the requirements, including an early conciliation number. Unite’s argument ignores the fact that the claim form contains all the prescribed elements, including an early conciliation number. If Unite were correct that separate proceedings had to be issued, it would be necessary to refer the second claim to ACAS and seek a conciliation certificate/number. There is no such requirement. 16.5. The provision for case management orders in Rule 30 states that “an application by a party or a particular case management order may be made either at a hearing or presented in writing to the Tribunal. It should be noted that the phrase “the Tribunal” is used throughout the Rules, whether or not a particular tribunal will have been seised of the case. There is no difference between the phrase “an Employment Tribunal” and “the Employment Tribunal” or “the Tribunal”. The point made by Unite at paragraph 9 does not have any weight. 17. There is no need for a fresh complaint to be made, as would have been the case when the EAT had jurisdiction so that the matter could be put before the higher tribunal. In a case such as the present the application which was made at page 68 was sufficient. 18. That this is the correct approach is strengthened when one considers other areas in TULCRA 1992 where there actually is a need to make a fresh complaint.2 In particular, Part IV demonstrates that where a fresh set of proceedings had to be issued, this was kept well in mind by the legislature: Disclosure of information for the purpose of collective bargaining 18.1. By section 183(1) a trade union may present a complaint to the CAC that an employer has failed to disclose certain information. By section 183(5) if the CAC find the case to be well founded it may make a declaration and specify a period within which the employer ought to disclose the information (183(5)(c)). After the expiration of the period referred to in section 183(5)(c), under section 184 “the trade union may present a further complaint...The complaint must be in writing and in such form as the Committee may require”. Procedure for handling redundancies 18.2 Section 189, provides that, in the case of a failure to collectively consult under section 188, or to make arrangements for elected representatives, a complaint may be presented to an employment tribunal. The tribunal may make a declaration and a protective award (189(2)(3)). The protective award is in respect of “one or more descriptions of employees”. 18.3. Unite assert that the right to claim compensation for a protective award under section 192 is a separate right. However, the whole point of section 192 is that it gives the individual the right to bring a claim “on the ground that he is an employee of a description to which a protective award relates and that his employer has failed wholly or in part to pay him remuneration under the award.” The whole point is that there is a need for a second action where the individual was not a party to the first action or where the employer asserts that the person does not fit into the description of employees declared by the tribunal. In the present case, KM was a party to the claim, the whole point is that it was her rights that were infringed, and the tribunal has expressly declared that she has been wronged. She was a party from the outset unlike a section 189 claim, where the employee bringing a section 192 claim may not have been a party to the first claim. 32.4. It should also be noted that there is a three month limitation period and there is the requirement to conciliation under section 192; the latter being plainly because the complaint is a fresh action, whereas under section 67 there is no conciliation provision since the section 67 claim is a continuation of the action. 19. The above examples show the legislature had in mind when there was a need for fresh proceedings, which also triggered the conciliation provisions in the case of collective consultation. Conversely, the disclosure of information provisions refer to a further complaint but that only need to be made in writing. Section 67 is more akin to the latter. 20. It is submitted that, on a proper and sensible construction of section 67, once there has been a declaration under section 66, is that it is only necessary to make an application in writing for compensation. There is no new party before the Tribunal (as is likely to be the case in a section 192 claim) nor is the application going to be heard by a body that has not already been seised of jurisdiction (as was the case when the EAT had jurisdiction) so that there is simply no need for a fresh application to be issued. That the conciliation provisions are not brought into play (as they are with section 192 claims) is a further point that the ‘application’ under section 67 is not to be by way of new proceedings. 21. It is submitted that this opportunistic application by Unite should be dismissed as having absolutely no merit and that the Tribunal should hold that it has jurisdiction. Compensation 22. At paragraphs 12 to 30 of its Skeleton, Unite make various comments about compensation, which will be dealt with in these submissions. It is asserted that:22.1 The statutory minimum award cannot apply.22.2 The Tribunal does not have jurisdiction to make an award for injury to feelings or other non-financial loss.22.3 If compensation for injury to feelings is awarded it should be at the bottom of the middle band. These submissions will be dealt with but it is first important to have in mind the findings by the Tribunal on liability. Liability 23 The relevant findings of liability are as follows: 152…We are, however, satisfied that a determination was made on or around 3 March 2017 that she should suffer a detriment, in that the she would be identified and blamed for the consequences to the union and the union movement in having taken her case to the Certification Officer and the consequences for the union and officials considering the EAT judgment. The email of 3 March, the Twitter tweet and the subsequent emails referred to above specifically referred to the claimant by name rather than as a member of the Branch or of the union. We, therefore, have come to the conclusion that the claimant had been unjustifiably disciplined in respect of the email communications from the branch. Each communication sent to the membership followed a discussion by the union officers and amounted to a determination. As such section 64(2)(f) is satisfied and the claimant was unjustifiably disciplined. Paragraph 2a(i) of the List of Issues in relation to the specific correspondence referred to above, is well-founded. 153. If we are in error in concluding that the above communications constituted determinations and the claimant was unjustifiably disciplined, we do conclude, in the alternative, that a determination was made on or around 3 March 2017, when the Branch Committee decided that it was time to address the rumours and negative publicity by referring to the claimant in their communication with the membership. The subsequent communications referred to above, directly followed on from the decision taken on or around the 3 March. In that respect she was unjustifiably disciplined. 155. The “unspecified commentary in social media at page X” paragraph 2a(ii) of the List of Issues, while the tribunal accepts that posts on social media websites can generally be said to represent an individual’s point of view, we note that Ms Marie Louise Elliott, Worldwide Fleet Elected Representative for the BASSA Branch, consistently used the pronoun “we” and used information she was privy to in her capacity as a union representative. She was most anxious to put over the Branch’s points of view in her posts during discussions. We, therefore, conclude that these posts were determinations made by a union official acting in that capacity under s.64(2). The posts were detriments in that they increased the claimant’s isolation from her colleagues and attributed bad motives to her in bringing the Certification Officer case. 157. We have concluded that the claimant was unjustifiably disciplined in relation to Ms Elliott’s commentary. 158. The tweet on “Court Cases and The Public Record” on 4 March 2017, gave the link to the document circulated to the members on 3 March 2017 which referred specifically to the claimant and those involved in the Castillo v Unite case. Again, we conclude that this was a determination made on or around 4 March 2017 by the Branch officers that the claimant’s case should be referred to in a tweet. This decision was a detriment to her as it further isolated her from her colleagues. We remind ourselves that the nature of the work of the BASSA involves travel all over the world and communication via social media is the principal means of keeping in touch and be seen as part of a team. We again would make the point that it was neither necessary nor acceptable for her to be identified by name and blamed for the alleged damage done to the union and the union movement. We have come to the conclusion that she was unjustifiably disciplined, paragraph 2a(iii). 162. We have found that the change to the Branch’s constitution, the timing of the amendment and the way in which it was expedited, were targeted at the claimant. The Branch officials and that the Branch were anxious to implement the proposed amendment prior to the claimant inspecting their documents on 7 April 2017. There was a determination on the 3 April 2017. The branch officials only disclosed the nature of the proposed amendment on the day of the meeting on 3 April 2017. Out of the 9,000 members only 41 attended the meeting. The claimant was named in the proposed draft letter to be sent to her with the threat of disciplinary and/or court action should she breach the provisions in the amendment which were in themselves quite restrictive as they do not allow for the claimant to discuss the documents with her legal advisors. Accordingly, she has suffered a detriment as she was targeted, isolated from the membership and restricted in her use of the information, paragraph 2a(vi). (2) The statutory minimum award cannot apply 24. The submissions made by Unite in paragraphs 12 to 16 of its Skeleton are surprising to say the least. They amount to an assertion that the union can denigrate a member as much as it likes and then when it is declared that it acted unlawfully, can simply shrug its metaphorical shoulders and assert that there is nothing it can do to reverse the harm it has caused. The more the member has been denigrated the greater the difficulty in reversing the position so nothing can be done. It would be a disgrace if Unite could avoid liability for compensation by such a disingenuous and cynical route when they have taken no steps. 25. Section 67(8A) and 67(3) in effect gave Unite four weeks to take steps to revoke the determination or to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination. In this case Unite (and BASSA) has done nothing. Those passages in bold above identify that KM was “identified and blamed”, that the conduct of Unite “increased the claimant’s isolation from her colleagues and attributed bad motives to her”, that KM was “identified by name and blamed for the alleged damage done to the union and the union movement”, that KM “suffered a detriment as she was targeted, isolated from the membership and restricted in her use of the information”. It is important to note that there is no defence of reasonable practicability set out in the section. The determination must be revoked, all necessary steps must be taken. 26. Unite cynically assert that if anything is done to address the matters publicly it would “simply draw further attention to them”. It would certainly draw attention to just how badly BASSA conducted itself and the fact that Unite have gone along with such conduct and not publicly resiled from it or repudiated it. The provision is analogous to unofficial strike action where the Union is liable it if has not repudiated the conduct – section 21 233 and 237 of TULCRA 1992. The Union takes the consequences of its members infractions unless it has complied with its duties. In this case Unite should have made it clear that it repudiated the conduct of its members, that KM had been wrongly identified and blamed and that she was wholly innocent of the slurs directed against her. It should have made it clear to those she worked with that she had been made the victim and was not the wrongdoer. These would be steps to secure the reversal of the calumnies that had been directed against KM. There was not even any attempt to engage with KM as to how Unite could rectify the position. 27. It is submitted that the minimum statutory amount shall be not less than the amount specified in section 176(6A) and that it should be awarded. (3) Injury to feelings and other non-pecuniary loss 28. The way in which section 67(5) to (8A) works is usefully summarised by commentary on section 67 in Harvey: These provisions are parallel to the ordinary rules on assessing compensation for unfair dismissal (sub-s (8)(a) being the maximum for the basic award and sub-s (8)(b) adopting the maximum for the compensatory award); for mitigation (sub-s (6)) in unfair dismissal law see Q [740]n, and likewise for contributory fault (sub-s (7)). There are, however, three differences–(i) although the maximum under sub-s (8)(a) is the same as for the basic award, the method of calculation is not the same (there being no obligation to use the mathematical formula based on age and length of service that applies when calculating the basic award); (ii) by virtue of sub-s (8A) there is a minimum award (as in TULR(C)A 1992 s 176(6A) in the case of exclusion or expulsion) where the union has not, at the date of application, revoked its determination or has failed to take all steps reasonably necessary to do so; (iii) damages can include aggravated damages and amounts for injury to feelings (with the latter being subject to the discrimination law guidelines in Vento v Chief Constable of West Yorks Police (No 2) [2003] ICR 318, CA): Massey v UNIFI [2007] EWCA Civ 800, [2007] IRLR 902, CA (where damages were also awarded for personal injury caused by the union's actions; Essa v Laing [2004] ICR 746, CA applied). For an example of the assessment of such compensation (under the previous provisions) see Bradley v National and Local Government Officers' Association [1991] IRLR 159, [1991] ICR 359, EAT. In deciding whether a union has taken all reasonably necessary steps, it is no answer for the union to say that any remaining steps could equally well have been taken by the applicant himself: NALGO v Courtney-Dunn [1991] ICR 784, EAT 29. Unite argue that non-pecuniary loss is not recoverable at paragraphs 17 to 22 of its Skeleton. It appears from paragraph 22.5. that Unite also argue that compensation for injury to feelings is not covered. The submission by Unite simply ignores the wording of section 76(5) which puts compensation at large3 based upon what is just and equitable. 30. At paragraph 18.1. Unite argue that the wording mirrors “so far as it goes” the language of unfair dismissal compensation under section 123 of ERA 1996. That is not correct. Section 123(1) provides that the amount of the compensatory award shall be such amount as the Tribunal “considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal. The section puts the unfair dismissal compensation fairly and squarely in the ambit of pecuniary loss. Section 67(5) does not do so. 31. At paragraph 18.2. Unite admit that the detriment provisions in TULCRA 1992 (s 149) and ERA 1996 (s49) can cover non pecuniary loss. Section 149(2) refers to compensation which the Tribunal considers “just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the act or failure which infringed his right”. Section 49(2) refer to the amount of compensation being “such as the tribunal considers just and equitable in all the circumstances having regard to(a) the infringement to which the complaint relates, and(b) any loss which is attributable to the act, or failure to act, which infringed the complainant’s rights.” 32. Unite assert that provisions have in some cases been held not to cover non pecuniary loss and this is correct (ie the Working Time Regulations 1998 as a classic example). Reference is made by Unite to Santos Gomes v Higher Level Care Ltd [2018] ICR 1571. This was a case under the Working Time Regulations 1998. Singh LJ stated: “66. Nevertheless, I would prefer to leave for decision in another case, in which the issue arises directly, whether cases such as Brassington and Blane were correctly decided in their own context. This is because (i) those cases have a longstanding pedigree, going back around 40 years; (ii) they were decided by judges with long experience of employment law; (iii) the House of Lords had the opportunity to say that they were wrong since they were cited in the Dunnachie case but did not say anything about them; (iv) this court did not have the benefit of full argument on the point, since Mr Pascall came to the hearing to distinguish the earlier appeal tribunal line of authority, not to bury it; and (v) they appear to relate to situations in which there may be no financial loss at all and so the purpose of Parliament in conferring the rights in question may be frustrated if compensation for injury to feelings were not available either. This is a point mentioned by Judge Peter Clark in particular, in Blane's case in a passage which I have quoted at para 47 above. 67. However, even if correctly decided, that line of authority is distinguishable from the present case because it concerns breaches of employment rights which are analogous to discrimination claims. In the present context, I agree with Slade J [2016] ICR 926 that the wrong complained of is akin to a breach of contract.” 33. Singh LJ clearly had in mind the distinctions between the different types of statutory claims/cases and, after considering, inter alia, Cleveland Ambulance NHS Trust v Blane [1997] ICR 851 and South Yorkshire Fire & Rescue Service v Mansell (unreported) 30 January 2018 (Soole J), noted: 53. First, Soole J was simply following the earlier decisions to which have already made reference and applying them to the particular context before him. As he observed at para 56 of his judgment: “The established categories (trade union rights, whistleblowing) are treated as akin to discrimination cases in a relatively loose sense, namely that the claimant has suffered some form of detriment on the grounds of his protected right or act. Whilst the right may require a particular status (e g trade union member; health and safety representative …), the example of whistleblowing demonstrates that this is not essential, save in the requirement to be a ‘worker’ ( section 47B ). What matters is the right, to which Part V gives further protection.” 54. Secondly, Soole J expressly considered and distinguished the decision of Slade J in the present case: see para 54 of his judgment. He drew a distinction from claims for breach of contract or claims akin to breach of contract, such as the present case, and cases of statutory torts. He regarded the case before him as falling into the latter category.[34]The distinction set out above is a good one and dictates that, in the present case, compensation for non-pecuniary compensation is appropriate. KM sets out the terrible effect that the conduct of the members had upon her and this is a case which is wholly akin to a statutory tort.[35]In Bradley & Ors v NALGO [1991] ICR 359 compensation for injury to feelings was awarded. In relation to whether compensation for injury to feelings could be awarded, Wood J stated “it does not seem in the present case that it is necessary to decide that matter.” In Massey v Unifi [2007] IRLR 902 the Court of Appeal adopted the same approach as in other statutory tort cases and awarded compensation for injury to feelings.[36]It is submitted that the cases in which non-pecuniary losses have been awarded should be followed and Unite place their case far too highly in asserting at paragraph 21 that there is no binding authority. On the contrary, even Santos, on which Unite appear to place reliance, recognised the difference between claims akin to breach of contract and claims akin to statutory torts.
Findings of fact
[37]It is submitted that the assertions made in paragraph 22 of Unite’s skeleton should be rejected: 37.1. The phrase “just and equitable” can bring in non- pecuniary loss dependent upon the type of case. 37.2. The compensation provisions in section 67 are most akin to a statutory tort. They are not akin to unfair dismissal and it is simply wrong to assert that the claims are similar to unfair dismissal or contractual rights. Section 65 does not deal with contractual rules but is more akin to discrimination in that the member is unjustifiably treated (detriments) because of one of the matters in section 65(2). The most natural interpretation is that the compensation does cover nonpecuniary loss. 37.3. This is a classic case where damages for injury to feelings should be awarded for their to be a remedy that properly compensates the Claimant. KM has suffered real detriment over a period of many months and should be properly compensated for this. Having asserted that KM is not entitled to a minimum award, Unite now argue in paragraph 22.3. that a declaration and such award is the primary remedy! In fact the minimum award relates to Unite’s obstinacy in failing to take any steps to make good its breaches and this is why it is awarded. The damages for injury to feelings recognise the very real wrongs and harm that KM has suffered. 37.4. The assertion in paragraph 22.4. does not make sense. In Cleveland Ambulance NHS Trust v Blane [1997] ICR 851 the relevant provision was section 149 of TULCRA 1992 which refers to such compensation as it “just and equitable in all the circumstances having regard to the infringement complained of and to any loss sustained” . The fact that the latter 12 words are absent in section 67 cannot be relevant. The compensation under section 67(5) is what is just and equitable “in all the circumstances”. It cannot be arguable that it is not just and equitable in all the circumstances to award damages for injury to feelings where KM was subject to what was, in effect, a campaign of denigration which self evidently cries out for such compensation. The section does not preclude such compensation and it is clearly appropriate. 37.5. Nor does the fact that there is no express provision which mentions compensation for injury to feelings mean that it should not be awarded; there are other areas where it has been awarded without such an express reference (the fact it is expressly mentioned in the discrimination st at u te s stems from 1975 when it was included in the Sex Discrimination Act 1975, simply to make the position clear, which found its way into the Equality Act 2010).[38]It is submitted that Unite’s assertion that damages cannot be awarded for non-pecuniary loss should be rejected. (4) The Appropriate Award.[39]Unite sets out its submissions at paragraphs 23 to 30. The points made in paragraph 23 are noted. The Tribunal can decide what to award by way of damages for injury to feeling based upon the evidence from KM. The acts of the members are acts for which Unite are liable. It was their sustained campaign which amounted to unjustified discipline. Paragraph 24 is simply not accepted. The Tribunal can award damages for injury to feeling based upon its view of the impact of the conduct upon KM. This is fairly standard.[40]The bands at paragraph 25 are accepted. KM seeks £30,000 which is the lower part of the upper band. This is appropriate given the evidence from KM, in particular, as set out in KM’s statement, of the ongoing campaign of bullying and harassment: 40.1. Fear and isolation at work set out at paragraphs 8-9. 40.2. Threats and fear for personal safety set out at paragraphs 10-13. 40.3. The conduct of Unite in changing the constitution set out at paragraphs 14-16. 40.4. The emails sent to the whole of the membership that meant she was ‘recognised’ as a troublemaker as set out at paragraphs 17 to 22. 40.5. The negative impact at work as set out at paragraphs 23 to 26. 40.6. The damage to KM’s home life, marriage and relationship with her children as set out at paragraphs 27 to 33. 40.7. The effect on KM’s health as set out at paragraphs 34 to 35. 40.8. The damage in her confidence with the union set out at paragraphs 36 to 37.[41]These matters are as serious as Massey since they massively impacted upon KM’s feeling of safety and wellbeing. The Tribunal is entitled to accept this evidence and gauge the impact of Unite’s conduct on KM. Aggravated damages[42]The Tribunal is entitled to award aggravated damages. The test in Commissioner of Police v Shaw [2012] ICR 464 is the appropriate one and, without punishing Unite, it is submitted that aggravated damages can be awarded because of the manner in which Unite conducted itself. It was said in Shaw that: “16. We draw attention to three features of that summary, based as it is on Lord Devlin's analysis in Rookes v Barnard [1964] AC 1129 .(1) Aggravated damages are compensatory in nature and not punitive.(2) The features that may attract an award of aggravated damages can be classified under three heads—(a) the manner in which the defendant has committed the tort; (b) the motive for it; and (c) the defendant's conduct subsequent to the tort but in relation to it.(3) The features enumerated at (2) above affect the award of compensation because they aggravate the distress caused by the actual wrongful act…. 21. Aggravated damages are an aspect of injury to feelings . It is a necessary corollary of the point made in the previous paragraph that “aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings”… 22. Criteria . The circumstances attracting an award of aggravated damages fall into the three categories helpfully identified by the Law Commission: see para 16(2) above. Reviewing them briefly: (a) The manner in which the wrong was committed . The basic concept here is of course that the distress caused by an act of discrimination may be made worse by it being done in an exceptionally upsetting way. In this context the phrase “highhanded, malicious, insulting or oppressive” is often referred to (as it was by the tribunal in this case). It derives from the speech of Lord Reid in Broome v Cassell & Co Ltd [1972] AC 1027 (see at p 1087 g ), though it has its roots in earlier authorities. It is there used to describe conduct which would justify a jury in a defamation case in making an award at “the top of the bracket”. It came into the discrimination case law by being referred to by May LJ in Alexander v Home Office [1988] ICR 685 as an example of the kind of conduct which might attract an award of aggravated damages. It gives a good general idea of the territory we are in, but it should not be treated as an exhaustive definition of the kind of behaviour which may justify an award of aggravated damages. As the Law Commission makes clear, an award can be made in the case of any exceptional (or contumelious) conduct which has the effect of seriously increasing the claimant's distress. (b) Motive . It is unnecessary to say much about this. Discriminatory conduct which is evidently based on prejudice or animosity or which is spiteful or vindictive or intended to wound is, as a matter of common sense and common experience, likely to cause more distress than the same acts would cause if evidently done without such a motive—say, as a result of ignorance or insensitivity. That will, however, only of course be the case if the claimant is aware of the motive in question: otherwise it could not be effective to aggravate the injury: see Ministry of Defence v Meredith [1995] IRLR 539 , 543, paras 32–33. There is thus in practice a considerable overlap with head (a). (c) Subsequent conduct . The practice of awarding aggravated damages for conduct subsequent to the actual act complained of originated, again, in the law of defamation, to cover cases where the defendant conducted his case at trial in an unnecessarily offensive manner. Such cases can arise in the discrimination context: see Zaiwalla & Co v Walia [2002] IRLR 697 (though NB Maurice Kay J's warning at para 28 of his judgment (p 702)) and Fletcher [2010] IRLR 25 . But there can be other kinds of aggravating subsequent conduct, such as where the employer rubs salt in the wound by plainly showing that he does not take the claimant's complaint of discrimination seriously: examples of this kind an be found in Armitage , *476 Salmon and British Telecommunications plc v Reid [2004] IRLR 327 . A failure to apologise may also come into this category; but whether it is in fact a significantly aggravating feature will depend on the circumstances of the particular case. (For another example, see the very recent decision of this tribunal (Silber J presiding) in Bungay v Sain i(unreported) 27 September 2011 . This basis of awarding aggravated damages is rather different from the other two inasmuch as it involves reliance on conduct by the defendant other than the acts complained of themselves or the behaviour immediately associated with them. A purist might object that subsequent acts of this kind should be treated as distinct wrongs, but the law has taken a more pragmatic approach. However, tribunals should be aware of the risks of awarding compensation in respect of conduct which has not been properly proved or examined in evidence, and of allowing the scope of the hearing to be disproportionately extended by considering distinct allegations of subsequent misconduct only on the basis that they are said to be relevant to a claim for aggravated damages. (words in bold -emphasis added)[43]It is difficult to think of more high-handed, malicious, insulting, oppressive conduct or behaviour based on prejudice or animosity or which is spiteful or vindictive or intended to wound than the various messages sent which are referred to in the judgment. This was in reality a campaign of hatred waged against an individual because she stood up for her rights by simply asking to see the Branch accounts. There has not been one redeeming factor from Unite throughout the course of this debacle. It is noted that, at paragraph 28, Unite state that it was fundamentally entitled4 to defend itself in relation to allegations and rumours that were circulating but it went too far. This is an understatement which even now seeks to downplay the conduct towards KM. There has been no apology and no attempt to redress the harm caused to KM. This is a case which cries out for an award of aggravated damages which KM seeks in the sum of £10,000.[44]The award that is sought consists of: 44.1. The minimum award of £9787. 44.2. £30,000 injury to feelings. 44.3. £10,000 aggravated damages 44.4. Loss of earnings. KM has set out in her witness statement at paragraphs 34 to 35 that she was off work for 25 days. Attached to this document is a letter form BA which confirms the flight allowance figure. Whilst she was paid sick pay she lost the standard allowance she would otherwise have received. This is calculated as: 5 x £77.35 + 20 x £76.01 = £1,906.95 44.5. The costs of the hearing of 29th January 2020 which had to be adjourned due to the late service by Unite of its Skeleton whereby it too the jurisdictional point.[45]The cap at section 67(8) applies so that the compensation is limited to £38,654 (plus the costs are a separate claim). The refresher for Counsel on 29th January 2020 was £2500 plus VAT.”34. The following are Mr Duggan’s footnotes: “1KM had already sought compensation, including damages for injury to feelings in her ET1 at page 42 2 Unite refer to section 192 of TULCRA 1992 at paragraph 10.6. but do not set out the actual scheme which is different from sections 66/67. 3 Subject to sections 76(6)-(8A). “35. In his addendum to his skeleton argument, Mr Duggan submitted that the wording of section 67 does not require that a fresh claim form should be presented “an application to an employment tribunal.” He refers to the wording in section 117(1) Employment Rights Act 1996, in which it is stated that “an employment tribunal” shall make an award of compensation, not “the” employment tribunal shall make an award of compensation. There is no requirement that a new claim in respect of remedy should be presented. The same argument applies in relation to this sections 128 and 132 ERA 1996. The law36. Both Mr Cooper QC and Mr Duggan QC, have referred to the relevant sections in TULR(C)A and to cases in their written arguments which do not require repeating. We have set them out in Mr Duggan’s skeleton arguments above. It is acknowledged that there is no case law specifically on the jurisdictional issue and on non-pecuniary loss. On jurisdiction, this is largely down to statutory interpretation of the relevant provisions.37. We have also considered sections 64 to 67, 149, 176(6A) for 188 to 192 TULR(C)A; sections 7(3ZA)(a), 117, 124, 128, 176(6A), 227 all Employment Tribunals Act 1996; section 49 and 123 Employment Rights Act 1996; section 34, Employment Relations Act 2004, schedule 1, Employment and Tribunal’s (Constitution and Rules of Procedure) Regulations 2013, and article 4(2)(a) The Employment Rights (Increase of Limits) Order 2017.38. In addition, we have taken into account the following cases: National and Local Government Officers' Association v Courtney-Dunn [1992] IRLR 114; Beaumont v AmicusMSF UKEAT/0122/03, [2004] All ER (D) 425 (Feb), Dunnachie v Kingston Upon Hull City Council [2004] ICR 1052, HL; Brassington & others v Cauldron Wholesale Ltd [1978] ICR 405, EAT; Brassington & others v Cauldron Wholesale Ltd [1978] ICR 405; Cleveland Ambulance NHS Trust v Blane [1997] ICR 851, EAT; Santos Gomes v Higher Level Care Ltd [2018] ICR 1571, CA; Bradley & others v NALGO [1991] ICR 359, EAT; Massey v Unifi [2007] IRLR 902, CA; Commissioner of Police for the Metropolis v Shaw [2012] ICR 464, EAT; and Forcer v Bakers, Food & Allied Workers Union [2004] UKEAT0634 03 1806; and Alexander v Home Office [1988] IRLR 190,CA. Conclusion Has the application been properly instituted?39. Mr Cooper submitted that the legislative scheme in section 67 requires that there be a fresh claim as the claim for a remedy hearing is not within the existing proceedings and requires an application before “an” Employment Tribunal. Rule 1, schedule 1, Employment Tribunals Rules 2013, defines a “complaint” as including a “claim”. As such rule 8 requires that a claim shall be presented in the prescribed form with the required information. An “application” in an enactment conferring jurisdiction, is a “complaint” which includes a claim and must comply with rule 8.40. We respectfully disagree. The previous section 67 provided where the claim of unjustifiable discipline was declared to be well-founded, that the claimant after waiting 4 weeks for the respondent to either revoke or reverse the determination, may apply to the EAT for a remedy hearing.41. Rule 30 provides that an application may be made to “the Tribunal” not “an Employment Tribunal”. The expression, “the Tribunal” is replete in the rules.42. In a protective award case, the failure to comply with section 188, the duty on an employer to consult, gives either the union, employee representatives, or the affected employees, in defined circumstances, the right to bring a complaint seeking a declaration and a protective award. The claim is between those described above and the employer, section 189. 43. Where, however, the employee has not been paid their protective award, they may present a complaint to “an Employment Tribunal” for payment, section 192. This is not analogous to the scenario submitted by Mr Cooper because the claim is between the employee and the employer. The parties are not the same as in section 189 claim. There is, accordingly, the requirement that a new claim be presented in accordance with section 192. The claimant and the respondent in this instant case, are the same. She is seeking a remedy in these and not in new proceedings following the tribunal’s judgment on liability. 44. Under the old section 67 there was the need for “an application” to be made to the EAT for a remedy hearing but that has been repealed as liability and remedy can be determined before an Employment Tribunal, section 34, Employment Relations Act 2004, as from 31 December 2004. 45. If Parliament intended that a claimant, after having been found that they had been unjustifiably disciplined, is then required to issue a fresh claim after waiting 4 weeks, it would have set it out clearly as well the requirement that they engage in ACAS early conciliation. Although issue fees have been repealed, prior to the judgment of the Supreme Court, the claimant may also have been required to pay another issue fee, but this is not the case in relation to a section 67 claim. Parliament has clearly set out the two-staged procedure in protective award cases.[46]We endorse the learned editors’ opinion in Harvey cited by Mr Duggan in paragraph 12 of his skeleton arguments, on this issue. Does the statutory minimum apply in this case[47]In relation to the statutory minimum, section 67(3) and 67(8A) gives the respondent 4 weeks to either reverse the determination or to “take all steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination”. No evidence was given by the respondent in respect of the steps it had taken in compliance with section 67(8A). Contrary to his written submissions, Mr Cooper acknowledged, orally, that the claimant is entitled to the minimum award. This applies where the union has neither revoked the disciplinary action nor has it taken all necessary steps to reverse the determination. The respondent must put the claimant in the same position she was in before the act of unjustifiable discipline, National and Local Government Officers' Association v Courtney-Dunn and Beaumont v Amicus-MSF. The minimum award is the same as for the improper exclusion of a union member, section 176(6). The figure currently is £10,022 but this figure is not the minimum to be awarded to the claimant in this case.[48]The “appropriate date” for determining the sum under section 67 is the “date of the determination infringing the applicant’s right”, article 4(2)(a) The Employment Rights (Increase of Limits) Order 2017. We agree with Mr Cooper that the respondent’s determinations were prior to the 6 April 2017. We have taken into account paragraphs 152, 157 and 162 of our judgment on the claimant’s treatment and the effects on her. In a work environment where reliance is placed on good, positive and supportive relationships amongst colleagues, the claimant felt targeted, isolated, blamed to damaging the union, and restricted in her use of information. At that time the applicable sum was £8,939. We, therefore, award this sum under section 67(8A). Does the Tribunal have the power to make non-pecuniary awards?[49]Section 67(5) states that, “The amount of compensation awarded shall, ….. be such as the employment tribunal considers just and equitable in all the circumstances.” Mr Cooper submitted that the wording is similar to section 123 ERA 1996, “(1) Subject to the provisions of sections 124, 124A, and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to the action taken by the employer.” What should be considered in assessing loss are contained in subsections 123(2) and (3).[50]In an unfair dismissal case, section 123 does not provide for non-pecuniary loss, Dunnachie.[51]Mr Cooper acknowledged that in unlawful detriment cases in section 149 TULR(C)A and section 49 ERA, non-pecuniary loss had been awarded, Brassington, and Cleveland but not Santos. He argued that the distinguishing feature is the absence of the words “loss” and “infringement”, Cleveland, in section 67(5) TULR(C)A. He submitted that the statutory scheme allows for the minimum award to be given and any consequential financial loss. Unlike in the Equality Act 2010, there is no express power to award injury to feelings.[52]We have come to the conclusion that the tribunal has the power to make an award for injury to feelings and for other non-pecuniary losses. Firstly, the learned editors of Harvey having considered section 67(5), stated that compensation can include injury to feelings and aggravated damages and referred to the Massey case.[53]Secondly, in Santos, it was acknowledged that trade union rights are akin to detriment claims or statutory torts, for which non-pecuniary loss can be awarded.[54]Thirdly, in the Forcer case, under the old section 67 provision, Hooper J, in paragraph 9 of the judgment, wrote, “There is no dispute that this Tribunal could include in its award, a sum representing an amount for injury to feelings. There was also no dispute that this Tribunal could make an award to include aggravated damages.” Fourthly, the same approach was taken in Bradley.[56]The compensatory provisions having been in force for some years, it would be an extraordinary and inconsistent step for this tribunal to take to depart from those cases and to accept Mr Cooper’s submissions. The appropriate award[57]We have also taken into account the cases of Vento v Chief Constable of West Yorkshire Police (No:2) [2003] IRLR 102, on the injury to feeling bands of award; and De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, updating the bands referred to below.[58]In the case of Vento, Lord Justice Mummery, giving the judgment of the Court of Appeal, gave guidance on the award for injury to feelings. He held that there should be three categories defined as the: lower; middle; and upper bands. Awards within the lower band are for less serious cases, such as where the act of discrimination is an isolated one or a one-off occurrence. Awards in the middle band are appropriate for serious cases which do not merit an award in the upper band. Awards in the upper band are for the most serious cases, “such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race.” His Lordship further held that only in the most exceptional cases should an award exceed the range in the upper band.[59]The Joint Presidential Guidance on the Injury to Feelings Awards, increases the bands every year to take account of inflation. In the context of this case, the claimant presented her claim form on 31 May 2017. The first Guidance was introduced on 5 September 2017 and applies to claims presented on or before 11 September 2017. However, in paragraph 11 of the Guidance,, it states the following:- “….. In respect of claims presented before 11 September 2017, an Employment Tribunal may operate the bands for inflation by applying the formula X divided by Y (178.5) multiplied by Z and where X is the relevant boundary for the relevant band in the original Vento decision and Z is the appropriate value from the RPI All Items Index for the month and year closest to the date of the presentation of the claim (and, where the claim falls for consideration after 1 April 2013, then applying the Simmons v Castle 10% uplift).”[60]We have decided to have regard to the Vento bands in that Guidance as the claim form was presented only 5 months earlier than the Guidance. The bands are: the lower band £800 - £8,400; middle band £8,400 – £25,200; and the upper band £25,200 – £42,000. In exceptional cases an award can exceed £42,000.[61]We have found that the claimant because of the abusive communication, was left feeling vulnerable. The emails were attempts to dehumanise her and she had no means of countering the respondent’s false narrative and an inability to defend herself. On Facebook, the negative comments she describes as being viral. She began to fear for her personal safety and visited the Hounslow Police Station to report her treatment and to seek advice. She was more fearful and anxious with each post and dreaded going into work with people in close proximity who were abusing her.[62]The change to the BASSA branch constitution was rushed through in an attempt at preventing her from speaking freely once she had reviewed the accounting records. At the meeting on 7 April 2017, she was wrongly accused of talking to the media, and felt the high levels of animosity towards her during the meeting.[63]From the beginning of March 2017, the respondent sent a series of emails to its membership of about 10,000 people, referring to her by name and in extremely derogatory and unpleasant terms. We found that she was specifically targeted in those emails. She had changed from being an ordinary employee to becoming infamous and could easily be identified as she kept her name on her name badge and was questioned by those working with her.[64]In order to reduce the risk of reprisals against her she had to request a “No-Fly” in respect of every union representative she knew to be involved in sending the offensive emails. In doing so, it affected her ability to swap shifts freely. She also had the constant fear that someone motivated by malice may place something in one of the bags in her charge. As a precautionary measure, she would constantly check the bags to ensure that they are still in the same state as she left them.[65]Her treatment impacted on her daughters when they eventually became aware of her treatment. It was upsetting to her that her daughters had been drawn into her workplace issues and she felt guilty that there were worrying about her.[66]Although workplace issues were not the sole cause of her marriage breakdown, they were a contributory factor as the whole experience led her to become withdrawn and depressed at home. She and her husband began to argue a lot and it felt as if each argument was pushing them further apart. The marriage had irretrievably broken down in or around February 2018.[67]Whereas previously, she would socialise with her colleagues, such as being invited out for meals, drinks and shopping trips, currently they are distant and such invitations are few.[68]She was on sick leave due to stress at work from 15 to 21 April 2017, and from 21 May to 16 June 2017. She found it difficult to return to work knowing that the whispering campaign against her was continuing. There is no medical report as she is not making a personal injury claim. She said, and we do accept her evidence, that her anxiety remains and that nothing will ever be the same for her again. “The respondent has turned my life upside down by pressing a few buttons on a computer keyboard.” Such is her current state after four years.[69]Taking these above matters into account, we have come to the conclusion that it would be just and equitable to make an award that falls within the upper band having regard to the fact that the claimant currently experiences the consequences of the respondent’s unjustifiable disciplinary action and fears for her personal safety. Her life has changed significantly for the worse. We, therefore, make an award for injury to feelings towards the lower end of the top band in the sum of £30,000. Aggravated damages[70]An award may be appropriate where the respondent has acted in a high-handed, malicious, insulting or oppressive manner. We agree with Mr Duggan’s skeleton argument in paragraph 43. The messages sent to the claimant were intended to wound, they were spiteful and vindictive as they were meant to punish the claimant for exercising her right as a union member. It was a campaign of hatred raged against a single individual who did not have either the resources or the support to respond effectively. Although entitled to defend itself, it went too far in the claimant’s case. There has been no attempt to redress the harm caused to her.[71]Taking these matters into account, and having regard to the judgment in Shaw, we decided not to increase the injury to feelings award because of aggravating features, instead to make a separate award in respect of aggravated damages in the sum of £5,000. Loss of earnings[72]The claimant was off work due to stress for five weeks as a result of her treatment at work. She claims loss of flying allowance. From the pay slips provided, Mr Cooper reasonably calculated that the flying allowance comes to 26% of her gross pay in 2017, which is £7,433.01, divided by 52 weeks, is £142.94. This figure is divided by 5 days giving £28.59 per day. During the 25 days she was absence in April to June 2017, due to stress at work, she lost £714.75. We agree with the respondent’s calculation as it is the best evidence based on the claimant’s payslips. (75-76) We, therefore, award her the sum of £714.75. Costs[73]The claimant claims her costs for the hearing on 29 January 2020 having to be adjourned following Mr Cooper raising the issue of jurisdiction.[74]On 6 December 2018, the respondent ought to have been aware that the claimant had not presented a further claim form for remedy as it believed she should have done. We acknowledge that Mr Cooper was working on his brief the day before the hearing and enquired into whether the claimant had presented a new claim for remedy. When he was informed by those instructing him that she had not, he alerted Mr Bheemah, counsel during the liability hearing, of his intention to raise the jurisdictional issue. In our view this issue could have been raised much earlier avoiding a hearing on 29 January 2020. In any event, we did not find in favour of the respondent in relation to the jurisdictional issue.[75]Having regard to rule 76(1)(c), the remedy hearing was adjourned because of the jurisdictional issue raised, very late in the proceedings, by the respondent. The respondent is ordered to pay the claimant’s costs, namely counsel’s fees, in the sum of £2,500.[76]Compensation is capped by section 67(8) TULR(C)A 1992. The maximum amount of compensation the tribunal can award is an amount equal to 30 times the limit for the time being imposed by section 227(1)(a) ERA 1996, which is the maximum amount of a week’s pay in respect of a basic award in unfair dismissal cases, in addition to an amount equal to the limit for the time being imposed by section 124(1) ERA, being the maximum compensatory award available in unfair dismissal cases.[77]Currently the cap on a week’s pay for the purposes of a basic award is £525, and 30 x £525 is £15,750.[78]In an unfair dismissal claim the claimant’s maximum compensatory award would be limited to 52 weeks’ gross pay under section 124(1) ERA 1996, which is £22,904.[79]The maximum amount of compensation the claimant can be awarded is £15,750 plus £22,904, a total of £38,654 plus her costs in the sum of £2,500.[80]The total awarded to her, therefore, is £41,154. A schedule is given below.[81]We would suggest to the parties that steps should now be taken by the respondent’s officials to restore a good working relationship with the claimant. She has been a member of the union for 34 years and recognises the benefits of membership. This would be in the interests of both parties. THE SCHEDULE The minimum award: £8,939 Injury to feelings: £30,000 Aggravated damages: £5,000[4]Interest @ 8% on £35,000 April 2017 to 28 May 2021-214 weeks @ £53.85 per week: £11,523 Loss of earnings: £714£56,176
The evidence
[6]The statutory limit under section 67(8) is £38,654: £38,654 Plus Costs in the sum of: £2,500£41,154