MS D CORRIGAN v GMB UNION (NO 1) [2007] UKEAT 0278_07_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0278_07_1910Case No Appeal No. UKEAT/0278/07/DM, UKEAT/0279/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D CORRIGANAPPELLANTGMB UNION (NO 1)RESPONDENTGMB UNION (NO 1)APPELLANTMS D CORRIGANRESPONDENT
Before
Mr Justice EliasDate 19 October 2007
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent Mr JASON GALBRAITH-MARTEN (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street LONDON WC1B 3LW SUMMARY Certification Officer Was the Trade Union acting in breach of section 46 of the Trade Union and Labour Relations (Consolidation) Act 1992 , which requires the election of its General Secretary, by choosing to delay an election for the vacant post for a period in excess of one year in order to await the outcome of an internal investigation into alleged electoral malpractices? The Assistant Certification Officer held that they were, but the EAT disagreed, upholding the Union's appeal. The EAT also rejected an appeal from the member, which in fact became irrelevant given the success of the union's appeal, that the ACO had erred in law in failing to make an enforcement order. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) We have today heard two appeals against the decision of the Assistant Certification Officer ("ACO") in which he made a declaration that the union was in breach of section 46 of the Trade Union and Labour Relations (Consolidation) Act 1992 , but refused to make any enforcement order. The union appeals on the grounds that he erred in finding them in breach. Ms Corrigan, who made the original application to the Certification Officer, appeals against the refusal to make an order. She chose not to appear before us or to be represented, nor did she provide a skeleton argument. She has not, however, withdrawn her appeal and we have determined it on the basis of her Notice of Appeal. The union was represented with respect to both appeals by Mr Galbraith-Martin. The law[2]Before considering the facts, it is helpful in this case to set out the relevant statutory provisions.[3]Section 46 of the 1992 Act sets out the obligation for unions to elect certain officers in the following terms:
"46 Duty to hold elections for certain positions (1) A trade union shall secure – (a) that every person who holds a position in the union to which this Chapter applies does so by virtue of having been elected to it at an election satisfying the requirements of this Chapter, and (b) that no person continues to hold such a position for more than five years without being re-elected at such an election.

(c) president, and (d) general secretary;"

There are certain specified exceptions where the union is exempt from the duty to hold an election. By section 57 newly formed unions are given one year's exemption; and by section 58, an elected officer need not be subject to re-election where he or she is within five years of the retirement age and certain detailed conditions are met.[4]The definition of General Secretary is found in section 119 as follows:
"In this Act, in relation to a trade union – "general secretary" means the official of the union who holds the office of general secretary or, where there is no such office, holds an office which is equivalent, or (except in section 14(4)) the nearest equivalent, to that of general secretary; …."
This is in truth hardly a definition, because it is circular. The General Secretary is the person who holds the office of General Secretary. The underlying assumption appears to be that the concept of General Secretary is well known. In practice, it will be what might be termed the "chief executive" of the union, and the definition makes plain that that person will be the General Secretary within the meaning of section 46 whatever title he is given under the union constitution.[5]A right to appeal against an alleged breach of the statute lies to the Certification Officer. Section 55(1) provides:
"Application to Certification Officer A person having a sufficient interest (see section 54(2)) who claims that a trade union has failed to comply with any of the requirements of this Chapter may apply to the Certification Officer for a declaration to that effect."
The remedies which the Certification Officer can grant are as follows:
"(1) If he makes a declaration he shall specify in it the provisions with which the trade union has failed to comply. (2) Where he makes a declaration and is satisfied that steps have been taken by the union with a view to remedying the declared failure, or securing that a failure of the same or any similar kind does not occur in future, or that the union has agreed to take such steps, he shall specify those steps in the declaration. (5A) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or more of the following requirements – (a) to secure the holding of an election in accordance with the order; (b) to take such other steps to remedy the declared failure as may be specified in the order; (c) to abstain from such acts as may be so specified with a view to securing that a failure of the same or a similar kind does not occur in future."
The facts[6]The GMB suspended its General Secretary, Mr Kevin Curran, on 15 March 2005. They appointed Mr Paul Kenny as the acting General Secretary, pursuant to rule 14(2) of the union's rules which states:
"The Central Executive Council shall, if circumstances so warrant, in case of either a vacancy or a suspension, appoint an elected official to act as a General Secretary and Treasurer pro tem, until a new General Secretary and Treasurer is elected, or a suspended General Secretary and Treasurer is restored to office. An elected official who holds temporary office shall not be entitled thereby to a vote on the Central Executive Council."
Mr Curran resigned from his position on 7 April 2005 with effect from 5 May 2005.[7]The union Congress then considered in June whether to set in train the election for the post of General Secretary. They decided not to do so in the light of the fact that the union had set up an internal inquiry to investigate a number of allegations of electoral malpractice, including in an earlier election for General Secretary. This enquiry was chaired by one of the union officers, Mr King.[8]Congress agreed that it would be inappropriate to conduct the election until the King enquiry had reported because of the possibility - which did in fact happen - that there would be changes to the electoral procedures and rules designed to try to make the system free from malpractice. Mr Kenny remained Assistant General Secretary pending the report.[9]The King enquiry in fact resulted in a very extensive report, running to almost a thousand pages including appendices. The report led to an amendment to the GMB electoral rules for, amongst other officers, General Secretary. These were adopted on 11 March 2006 by the union congress. At the same time proceedings were put in place to elect a General Secretary under the new electoral rules. Mr Kenny was in fact elected by a ballot of the membership, his office taking effect as from 8 May 2006.[10]Meanwhile, there had been a complaint by Mr J Doyle, one of the union members, to the Certification Officer contending that the GMB had been in breach of its own rule 15.2 by not seeking nominations from the union branches for the office of General Secretary forthwith following the resignation of Mr Curran on 7 April 2005. The matter was heard by the ACO who found that there had been a breach of the relevant rule. No complaint at that stage was made that there had been a breach of any statutory provision. The ACO held that once it was plain that Mr Curran was going to leave office, the union should as soon as was reasonably practicable thereafter have sought nominations for the office. However, by the time of the hearing before the ACO the rule had been changed and the union was therefore no longer in breach. Accordingly, the ACO declined to issue an enforcement order.[11]On 15 May 2006, very shortly after Mr Kenny's election, Ms Corrigan submitted her complaint under section 55(1) of the 1992 Act. She alleged that the union had failed to comply with section 46(1)(a) of the 1992 Act by allowing Mr Kenny effectively to hold the office of General Secretary without being elected. She did not accept that the true reason for postponing his election was to await the outcome of the King report.[12]The union submitted that, as Acting General Secretary, Mr Kenny was not performing the office of General Secretary as such. Indeed, it was common ground that he did not, for example, exercise votes on the CEC. There was a substantive difference, argued the union, between "holding a post and acting in the role". Were it not so, every person temporarily acting as General Secretary would necessarily be holding office in breach of section 46. It was, moreover, submitted that the union was acting in good faith and had good reason to postpone the holding of the election.[13]The ACO upheld the complaint. He had regard to the broad definition of General Secretary in section 119. He noted that there were exceptional cases where Parliament has provided that an election is not necessary, for example, with newly-formed unions or where an elected leader is approaching retirement age. However, no such exception was made to deal with casual vacancies. He then expressed his conclusions as follows (paras 48-52 inclusive):
"I am of the view that, in the case of a casual vacancy, a union may lawfully appoint an acting general secretary to perform the functions of the General Secretary but, should a member make a complaint to the Certification Officer, the Certification Officer will, just as the courts would, look behind the label to the reality and decide whether in fact that person is holding the position of General Secretary for the purpose of section 46(1). In this case, on the issue of fact, I accept that Mr Kenny, unlike previous General Secretaries did not vote at meetings of the CEC. However, the Union produced no example of any other General Secretary function he did not perform, and only disputed details of the functions listed by the Claimant. I find that all the General Secretary functions other than voting were vested in Mr Kenny and in Mr Garley's words he was paid the rate for the job. The additional and unusual feature in this case is the length of time that Mr Kenny carried out those functions. He began to carry them out on 23 March 2005 when Mr Curran was suspended. He continued to carry them out after 5 May 2005 when Mr Curran resigned and there was a vacancy for the office of general secretary. He was not elected as general secretary until 8 May 2006. On the facts of this case I find as a matter of fact that, although the office of General Secretary of GMB was nominally vacant from 6 May 2005, Mr Kenny was in reality occupying that office for a significant period before 8 May 2006 without having been elected to it. The reason they chose to delay any election is immaterial. There was a statutory obligation on the Union to hold an election far sooner than they did. The period of time it takes a union to fill a casual vacancy for the office of General Secretary will vary from case to case. Each case will depend on its facts. However, the longer it takes a union to hold an election for the vacant office of general secretary, the more likely it is that any person appointed to perform the functions of that office on an "acting" basis will be found, in reality to be holding that office. On the facts of this case I have no doubt that Mr Kenny was in fact holding the office of general secretary in the period immediately prior to his election, whatever label the Union may have put upon his position."
[14]In substance, therefore, his conclusion was that whilst someone can for a short period carry out the functions of General Secretary without being deemed to have occupied that office, there comes a point where it is no longer appropriate to refer to such a person as simply acting in the role. In that context, the reason why he has been retained in an acting role - which is essentially the same reason why the election is delayed - is immaterial. In the circumstances it was not necessary for the ACO to define precisely when the union was first in breach of the section. It was sufficient to declare that they were in breach by the time they chose to hold an election.[15]Accordingly, the terms of the declaration were as follows:
"Prior to 8 May 2006 the GMB acted in breach of section 46(1)(a) of the 1992 Act by failing to secure that following the resignation of the former General Secretary in April 2005 the position of General Secretary of the GMB was filled by a person elected to it at an election satisfying the requirements of the 1992 Act."
[16]Ms Corrigan had also asked the Certification Officer to issue an enforcement order. She requested that the Certification Officer should issue such an order to the effect that in calculating when Mr Kenny should stand for re-election, he should be treated as though he had been appointed to act as General Secretary when he took up the duties on 23 March 2005. The Certification Officer declined to make any such order. He considered it inappropriate to do so because:
"Since 8 May 2006 Mr Kenny has held the office of General Secretary of the union by virtue of an election which no-one has challenged as being in breach of the requirements of Chapter 4 of the 1992 Act. That election allows him to remain in office without a further election until 7 May 2011."
The appeals[17]There are two appeals. In the first, the union contends that the ACO was wrong in determining that they had been in breach of section 46 at all. The second appeal is from Ms Corrigan, who complains that the ACO ought to have issued an enforcement order. We will consider the two appeals separately. The union's appeal[18]In a skilful argument, Mr Galbraith-Marten developed his submissions as follows. Plainly there is no obligation to elect anyone who at any time exercises the functions of the General Secretary. A union might properly appoint an Acting General Secretary even where that office is held by another, for example, during a period when the holder of that office is ill, or on maternity leave. There is then an elected officer in post, albeit temporarily unable to exercise the functions of the office, and no further election for the Acting General Secretary temporarily performing those functions is required. That is so even although he or she may be acting in the role for a lengthy period of time. The only issue, therefore, is whether the fact that the office is vacant alters matters.[19]Mr Galbraith-Marten submits that it in principle it does not. Section 46 does not oblige the union to secure an election simply because the office has become vacant. It requires that the person who holds the position of General Secretary shall in fact be elected. If, however, no-one is holding the position of General Secretary, then there can be no breach because there is no failure to ensure that the General Secretary has been elected. The ACO is not entitled to find that the acting General Secretary in fact holds the full office merely because of the passage of time. The key question is whether the union genuinely considers that the Acting officer is indeed just that: acting in the post pending a decision to fill it. If the union has a genuine reason for wishing to extend the period during which someone temporarily carries out the functions of General Secretary, it must be entitled to do so. Nothing in section 46 forbids it.[20]The union accepts that it is not legitimate for any union simply to represent that the officer exercising the functions of General Secretary is not the General Secretary, or is merely the Acting General Secretary, when in fact the union is intending that he should hold the full office. But it is submitted that there is a distinction between someone "holding a post" and someone "acting in the role". It is only if it is legitimate to infer that someone acting in the role is in truth holding that office that the failure to hold an election puts the union in breach of the section. That inference can only fairly be drawn if the union's reason for delaying the election is not a genuine one. For example, if the ACO were to believe that the purpose was to avoid an election, that would justify an inference that in reality the Acting General Secretary was holding the full office. However, there is a genuine reason for allowing someone to act in the role, there is no basis for concluding that the description of Acting General Secretary is false.[21]Accordingly, in this case the union says that there were two interrelated errors in the ACO's approach. The first was that he inferred that Mr Kenny held the office of General Secretary merely because of the time for which he was occupying the post of Acting General Secretary. The second was that he expressly treated as irrelevant the reason why the union had delayed the election. Had he taken that into consideration, Mr Galbraith-Marten submits, then the ACO would inevitably have concluded that the union was not conferring a false title upon Mr Kenny for the purpose of avoiding its obligations under section 46. Rather, the union was genuinely wishing to put its electoral arrangements in order prior to calling an election so as to ensure a proper and fair election, and it did not wish to fill the office of General Secretary in the meantime. Discussion.[22]It seems to us that there is much common ground between the approach of the ACO and the union. Both recognise that mere labels tell you nothing, and that the issue is whether in reality the Acting Officer holds the post of General Secretary. The difference appears to be this; the union submits that whether or not someone is properly to be described as acting in an office or as holding the office is at least initially a matter for the union itself. If the union genuinely considers that the office remains vacant and that the person exercising the functions of the office is doing so only on an acting basis, then they are not enabling or permitting an unelected person to hold the office.[23]The union accepts that the period of time for which an office is kept open will be of evidential significance when assessing whether the post has in reality been filled or not, but contend that any delay in holding the election cannot of itself justify the inference that the person is not holding the office on an acting basis. An inference of that nature can only be drawn if the purported reasons for keeping the office vacant are considered but not found to be genuine. They will not be genuine or in good faith where the reason is to avoid an election, because that would frustrate the very purpose of the legislation. In reality, that person would be the "chief executive" albeit not given the formal title of General Secretary.[24]By contrast, the ACO has assumed that when someone is exercising the functions of General Secretary and that post is vacant, there will come a time where he must be considered to be the General Secretary, whether the union genuinely perceives him in that light or not. Whether that time is merely long enough to enable the union to take steps to ensure that an election is held once a vacancy arises or whether, and if so on what basis, it could be longer, the ACO did not make clear. It may be that he was envisaging that the union must take reasonable steps to secure that the office is filled by an election immediately it becomes vacant, and that the person exercising the functions in the interim is not the General Secretary. If, however, he is allowed to hold the reins for longer than is reasonably necessary to call and conduct an election, he will thereafter be treated as holding the office and the union will be in breach of section 46.[25]We were initially inclined to the view that the ACO was correct, but we have been persuaded by Mr Galbraith-Marten that he was not. It is important to emphasise that section 46 does not specify when the election has to be held. It does not oblige a union to fill a vacancy as soon as it becomes vacant; nor do we think that this is a necessary inference from the language of the section. It is to secure that anyone who in fact holds the office of General Secretary has been elected.[26]At the heart of the issue is whether someone appointed as Acting General Secretary must be treated as the General Secretary merely by being allowed to continue to exercise the functions of the General Secretary once a vacancy has arisen.[27]This takes us back to the definition of General Secretary. It is someone who holds the office of General Secretary, or where there is no such office, its equivalent by whatever name called. This means that a union cannot evade the legislation simply by calling its senior officer something other than the General Secretary. In so far as the Acting General Secretary is in truth the General Secretary by another name, the section bites. At the same time, it is to be noted that the office is not defined by reference to the person who carries out the functions of the office. Were it so defined, it would require an election even where someone temporarily took over the reins from an incapacitated General Secretary. (By contrast, the definition of the executive, whose members must also be elected, is a functional one: it is the principal committee of the union exercising executive functions (see section 119)). It follows that it is not possible to identify whether someone holds the office of General Secretary merely by looking at whether he or she carries out the functions of the office.[28]We agree with Mr Galbraith-Marten that a person does not necessarily become the General Secretary as defined merely by the combination of his or her exercising the functions of that office for a period of time together with the fact that the office has become vacant. The circumstances must be such that it is legitimate to infer that in reality the union is treating the Acting General Secretary as fulfilling the office of General Secretary, so that they are in fact permitting the office to be filled without securing an election. That is not in our view a necessary inference merely from the fact that he or she carries out most, or indeed all, of the functions of the General Secretary for a period of time during which an election could have been held. No doubt there is in practice a limited period during which a trade union, like a company, can do without a chief executive, but in both cases there are exceptional circumstances where the organisation has good reason for delaying filling the post.[29]There will be a breach of the section if the arrangement is a sham, as Mr Galbraith-Marten accepts. That will arise where the acting officer is in fact no longer genuinely considered by the union to be acting on a temporary basis but is holding the office of General Secretary in all but name. The union will then be in breach of the section by permitting him to act without first being elected.[30]In our view that will be an easy inference to draw if the union had no obvious reason not to hold an election. The only reason to have an acting officer is if there is some legitimate reason for not taking steps to secure filling the vacant office. If there is no such reason advanced, or no reason which satisfies the Certification Officer as genuine, then it can readily be inferred that the only reason for not filling the office is to try to avoid the statutory obligation to elect the officer.[31]In our judgment, therefore, the ACO was in error in finding in this case that there was a breach of section 46. He did not have regard to the reasons for maintaining Mr Kenny in an acting role. He could only have concluded that Mr Kenny was in reality the General Secretary if he had determined that the union did not genuinely intend that Mr Kenny should be Acting General Secretary but should hold the full office of General Secretary. Although the ACO did not in fact make any express finding on that, we think that by failing to find as urged upon him by Ms Corrigan, that the reason given by the union for not holding the election was false, he was implicitly finding that it was a genuine reason.[32]We believe that this construction is in accordance with the purpose behind the legislation. It is not to dictate to unions whether they can properly delay filling a particular post; it is to ensure that when the post is filled it is done so following an election meeting certain standards.[33]In any event, it seems to us that there is simply no evidential basis for questioning the good faith of the union's decision. They had commissioned an inquiry and did in fact receive a report which led to the alteration of the election rules. There was every good reason in principle not to call an election under the old discredited rules because of the risk of malpractice. Indeed, the reason actually relied upon strengthens the democratic process which the statute is designed to uphold.[34]For these reasons, therefore, we conclude that at all material times Mr Kenny occupied the position of Acting General Secretary only. Hence there was no breach of section 46. Accordingly, the Union's appeal succeeds. Ms Corrigan's appeal[35]In her appeal, Ms Corrigan seeks to show that the ACO has erred in law in refusing to make the enforcement orders she sought. Given our conclusion on the union's appeal, this appeal no longer has any relevance. There is no power to issue an order at all if there is no breach of the statute. However, we will briefly set out our conclusions on the case as presented in the Notice of Appeal.[36]Ms Corrigan submits that two quite distinct forms of order should have been made. First, in an argument not apparently advanced below, she says that the ACO ought to have made an order requiring the union to comply with their obligations in future. There was a risk that far from encouraging compliance, failure to combine the declaration with an order could have led other unions to believe that they could ignore the law with impunity. They might flout their obligations in the knowledge that it would take some considerable time for a member to obtain a declaration from the Certification Officer. Meanwhile someone could occupy the post of General Secretary in breach of the law.[37]Second, she submits that in any event the ACO ought to have made a finding as to the date when the union began to be in breach of its obligations and make a consequential order that the next election should take place five years thereafter. It was wrong for Mr Kenny to be allowed to exercise the functions of a General Secretary for the best part of a year prior to his election and yet to continue to in that office for a further five year period following his election. This was particularly so since the consequence in this case was, by virtue of Mr Kenny's age, the union could take advantage of the exception allowing them to dispense with an election given that he was within five years of retirement when the period for the next election arose.[38]She further submitted, in relation to this aspect of the case, that the ACO had erred in failing to make reference to an earlier decision of the Certification Officer, namely Hill v The Bakers Food and Allied Workers Union (31 October 2002) (D/31/02) which, she says, supports her case.[39]We bear in mind that there is no obligation to make an order; it is discretionary. Moreover, in our judgment it cannot be used in order to encourage other unions to comply with their legal obligations. The purpose of an order is to secure compliance by the wrongdoing union. However, as the ACO noted, the legal defect had been corrected. An election had been held. We do not discount the possibility that the Certification Officer has the power to make an order of the kind sought by Ms Corrigan if there were evidence that the defendant union would in future act in defiance of a Certification Officer's ruling or with the legal obligations as identified by the Certification Officer in his decision, but there was no reason for the ACO to make any such assumption in this case.[40]As to the refusal to identify the date from which the union was in breach and to require an election five years from that date, we are satisfied that it would have been wrong for the ACO to make such an order. Mr Kenny had been elected for five years in accordance with the properly held election. Both he and those electing him were entitled to assume that he would hold office for the period specified in the rules and identified in the election process. If someone other than Mr Kenny had been elected, we see no basis at all in which it could ever have properly been suggested that he or she should, because of the union's default, be deprived of the right to hold office for the five year period. We do not think that Mr Kenny is in any different position merely because he was Acting General Secretary. If there were any default by the union, he cannot be held accountable for that, and nor should he be prejudiced as a consequence of it.[41]The submission that the ACO erred in failing to have regard to the earlier decision in the Hill case is doomed to fail. There is plainly no obligation on the Certification Officer to refer to earlier decisions.[42]In any event, we agree with Mr Galbraith-Marten that if anything the Hill case assists the union and not Ms Corrigan. In the Hill case the Bakers' Union had carried out an election for General Secretary but had treated the tenure of the successful candidate's office as having commenced some months after he had taken office pursuant to the election. This would have meant that he would have retained office for a period in excess of the five years permitted by the statute.[43]In those circumstances, the Certification Officer quite properly made an order that the period of office should be treated as having commenced from the date of election. The effect of that order was to secure that the General Secretary did not stay in office for longer than the period for which he was elected: it was not requiring him to hold office for a shorter period than that for which he was elected. Disposal[44]It follows that the appeal of the union succeeds and we quash the declaration made by the ACO, substituting a finding that the union was not in breach of section 46. Ms Corrigan's appeal fails.