EAT/0375/08/RN UNISON v MR Y BAKHSH [2009] UKEAT 0375_08_0804

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0375_08_0804Case No Appeal No. UKEAT/0375/08/RN UKEAT/0376/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/0375/08/RN UNISONAPPELLANTMR Y BAKHSHRESPONDENTEAT/0376/08/RN UNISONAPPELLANTMR A STAUNTONRESPONDENT
Before
Mr Justice UnderhillDate 8 April 2009
[1]APPEARANCES For the Appellant MR OLIVER SEGAL (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW For the Respondent in Bakhsh For the Respondent in Staunton MR YUNUS BAKHSH (The Respondent in Person) MS KERRY GARDINER (of Counsel) Instructed by: ETAS Direct Ltd 41 Little Dock Lane Honicknowle Plymouth PL5 2LZ SUMMARY CERTIFICATION OFFICER Bakhsh Appellant, a UNISON member who was the subject of a disciplinary investigation which had not resulted in formal charges, was suspended from office by decisions dated 16.1.07 and 12.3.07 on the basis that he was "facing charges" – On 12.11.07 he complained to the Certification Officer that his suspension was contrary to the Union's Rules. Held:(1) that the complaint was out of time by reference to s.108B (6) of the Trade Union and Labour Relations (Consolidation) Act 1992 and that informal correspondence following the suspensions did not constitute the invocation of an internal complaints procedure within the meaning of s-s (6) (b);(2) that a member could be "facing charges" within the meaning of the relevant rules notwithstanding that charges had not yet been notified. Staunton Appellant, a UNISON member, who was the subject of a disciplinary investigation, was prevented by the Union from standing in elections to the NEC on the basis that he was suspended from holding office Held: (1) that the Union's rules did not on their true construction prevent members who had been suspended pending disciplinary investigation from standing for office; and accordingly the Appellant was not part of a class all members of which were excluded within the meaning of s. 47(3) of the 1992 Act; (2) that the suspension of the Appellant was unreasonable within the meaning of s. 47 (1). THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) INTRODUCTION There are before us two appeals against decisions of the Certification Officer. The appeals involve the same trade union, UNISON, and involve consideration of some of the same provisions of its Rules. Accordingly, before the Certification Officer the two applications were treated as informally linked. Nevertheless, the factual background to the two cases is wholly distinct.[2]It is convenient to set out at this stage the provisions of the Union's Rules (which are its 2007 Rules) to which we will have to refer. They fall under two Rules – "Rule C: Membership"; and "Rule I: Disciplinary Action".[3]Under Rule C the only relevant rule is C7.4, which is headed "Suspension" and reads as follows:7.4.1 The National Executive Council shall have the power in exceptional circumstances to suspend a member from office for a period of not more than 60 days (unless such a period is extended by agreement between the parties) if the member faces disciplinary charges under Rule I and the National Executive Council considers it appropriate in the interests of her or his branch or of the Union generally that she/he should be suspended until the charges are determined.7.4.2 In cases of alleged financial irregularities brought under Rule I and the member faces disciplinary charges related to such allegations arising from a Rule I investigation, the National Executive Council may suspend the member(s) from holding office until the conclusion of the disciplinary investigation, hearing or appeal. We will have to consider the effect of that rule in detail in due course; but it should be noted at this stage that suspension under rule C7.4.1 can only (absent agreement) be imposed for a maximum of 60 days, whereas suspension under rule C7.4.2 – which covers cases of alleged financial irregularities – can extend until "the conclusion of the disciplinary investigation, hearing or appeal".[4]The relevant provisions of Rule I are as follows: 5.1 Where there appear to be reasonable grounds to think that a member might be guilty of a disciplinary offence, . 1 the member's Branch Committee or Service Group Executive will investigate whether the charges are justified; . 2 the National Executive Council may appoint any of its number, or the General Secretary, to investigate whether the charges are justified. 8 Where a disciplinary charge is proved against a member, any of the following penalties may be imposed: (1) – (3) … By the National Executive Council (4) debarring the member from all or any of the benefits of membership for whatever period seems to it to be appropriate; (5) suspension of the member from all or any of the benefits of membership for whatever period seems to it to be appropriate; (6) expulsion of the member from the Union.9.1 A member who is dissatisfied with the decision of the branch or National Executive Council in respect of charges against her or him may exercise the following rights of appeal, whichever is appropriate: . 1 from a decision of a branch to a Disciplinary Sub-Committee of the National Executive Council; . 2 from a decision of the National Executive Council to the Union Appeals Committee.9.2 The decision of the National Executive Council Disciplinary Sub-Committee or of the Union Appeals Committee as appropriate shall be final and binding upon the Union and the member concerned. 11 The procedure to be adopted for disciplinary hearings and appeals shall be as set out in Schedule D. Schedule D, referred to under rule I 11, is headed "Disciplinary Procedures". Most of it is irrelevant for our purposes, but we need to set out para. 1, which reads as follows: No later than 21 days before the disciplinary hearing the member shall be sent a written notice of the charge, stating the sub-paragraph(s) of Rule I.2 under which she/he is charged and stating briefly how and when the member is said to have broken the sub-paragraph(s) concerned. At the same time the member shall be sent copies of any written material and correspondence to be considered in relation to the charge, together with the report of any investigation, and shall be told the date, time and place at which the charge against her or him is to be heard.[5]The Union was represented before us in both appeals by Mr Oliver Segal of counsel. Mr Bakhsh appeared in person. Mr Staunton was represented by Ms Kerry Gardiner of counsel. Mr Segal and Mr Bakhsh both appeared before the Certification Officer: at that stage Mr Staunton represented himself. BAKHSH INTRODUCTION[6]Mr Bakhsh is a nurse employed at Newcastle General Hospital. He has been a member of UNISON or its predecessors for over 23 years and has held various offices within the Union for most of that period. He was a member of the National Executive Council ("NEC") between 2002 and 2005. In 2007 he was joint secretary of his branch and a member of the Health Services Group National Executive.[7]Mr Bakhsh made five complaints to the Certification Officer. Three were dismissed, and this appeal is concerned only with the two on which he succeeded. We need only set out the facts relevant to those complaints, and we do so briefly since the issues which we have to decide do not depend on any question of detail:(1) In the course of 2006 there was some ill-will between the members of the three Union branches in the Newcastle area serving NHS employees. Against that background, some members of the Union made complaints against Mr Bakhsh, and he in turn made complaints against other members. At the request of the Regional Secretary, those complaints were investigated in late 2006 and early 2007 by Ms Dorothy Tokat.(2) In January 2007 Ms Tokat recommended that the Union initiate a disciplinary investigation into Mr Bakhsh's conduct and that consideration should be given to suspending him from office.(3) That recommendation was considered under delegated powers by Mrs Sue Highton, the Chair of the Development and Organisation Committee of the NEC. After asking Ms Tokat to amplify her report in some respects, on 16 January 2007 Mrs Highton authorised Mr Kevan Nelson, the Head of Democratic Services for the Union, to write to Mr Bakhsh in the following terms:
"UNISON RULE I INVESTIGATION I wish to inform you that you are subject of complaints which allege harassment of UNISON members. On 16 January 2007, the chairperson of the National Executive Council's Development & Organisation Committee authorised an investigation under Rule I into your alleged conduct. In accordance with Rule C 7.4.1 you are suspended from office with immediate effect for a period of not more than 60 days. John Cafferty, Regional Manager, has been appointed investigating officer and will be in contact with you shortly to arrange an interview to discuss this matter. Please note that UNISON will ensure that this matter is dealt with in strict confidentiality." (4) On 25 th January 2007 Mr Bakhsh sent an e-mail to Mrs Highton. It began: "
I wish to appeal against your decision to suspend me from officer under Rule C 7.4.1." The e-mail goes on to make a large number of points which we need not set out. It concludes:
"I would therefore ask you to reconsider your decision. I have no problem facing any internal allegations but I would prefer to do so without the threat of dismissal hanging over my head." (5) On 5 February 2007 Mrs Highton replied as follows: "
UNISON RULE I INVESTIGATION I refer to your email dated 25 th January 2007 in which you appeal against the National Executives Council's decision to suspend you from holding office under Rule C7.4.1. Please note that your suspension from holding office is linked to the Rule I disciplinary investigation and was implemented upon recommendation of the offer who investigated complains about your conduct at UNISON meetings. Therefore, I have referred your submission to John Cafferty who is investigating the Rule I matter. I will ensure that the Union continues to observe strict confidentiality in the Rule I investigation to avoid prejudice to your employment with Northumberland Tyne and Wear NHS Trust." (6) There was no specific response from Mr Cafferty to Mr Bakhsh's e-mail of 25 January 2007. But on 28 February 2007 he submitted a report which sought authority to extend the scope of his investigation to include "matters of financial irregularities and political fund breaches" and invited consideration of whether or not suspension under rule C7.4.2 (which, as noted above, would continue until the end of the process) should be imposed. Mrs Highton accepted those recommendations and decided to impose a suspension under rule C7.4.2. Mr Bakhsh was notified of this in a letter from Mr Nelson dated 12 March 2007. (7) Over the following six months or so there was a good deal of further correspondence between Mr Bakhsh and his representative, Mr Ladbrooke, on the one hand and Mr Cafferty and Mr Nelson on the other. We will refer in due course to the character of that correspondence, but the only point that we need to note at this stage is that the Union confirmed that no charges had been laid against Mr Bakhsh and that none would be until the conclusion of the investigation. As Mr Cafferty said in a letter dated 24 July 2007:
"I have consistently indicated to you, indeed you should be aware as a Senior National UNISON Representative, that charges are not formulated and put to individuals before investigation takes place. Charges are only put to individuals and disciplinary hearings are only convened if and when, after investigation, it has been decided by the NEC that there is a case to answer. As has been explained to you and your representative on numerous occasions, this is a Rule I investigation, therefore you are facing no charges at this stage."
THE PROCEEDINGS BEFORE THE CERTIFICATION OFFICER[8]Under s. 108 A(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 a person who claims that there has been a breach of the rules of a trade Union in relation to ( inter alia ) disciplinary proceedings may apply to the Certification Officer for a declaration and for consequential orders as defined in s. 108B. By s-s. (6): Application must be made –(a) within the period of six months starting with the day in which the breach or threaten breach is alleged to have taken place, or(b) if within that period any internal complaints procedure of the Union is invoked to resolve the claim, within the period of six months starting with the earlier of the days specified in subsection (7). S-s. (7) provides as follows: Those days are – (a) the day on which the procedure is concluded, and (b) the last day of the period of one year beginning with the day on which the procedure is invoked.[9]Mr Bakhsh's case before the Certification Officer, so far as concerns the present appeal, was that both the initial suspension under rule C7.4.1 and the subsequent suspension under rule C7.4.2 were of no effect because he had not at the relevant times been "facing disciplinary charges".[10]The Union took a point as to whether the application was brought in time. The dates of the two suspensions were 16 January and 12 March; but the application to the Certification Officer was not made until 9 November 2007. Mr Bakhsh relied in response on s-s. (6) (b) and claimed that his various letters and e-mails to the Union beginning on 25 January 2007 constituted the invocation of an internal complaints procedure.[11]The Certification Officer, in an admirably full and well-structured decision, dealt first with the time point. At paragraph 35 he said this: "I have … considered whether the Claimant invoked any internal complaints procedure of the Union within six months of his suspension on 16 January 2007. Neither party chose to address me on this point. I observe that on 25 January 2007 the Claimant wrote to Mrs Highton expressing his wish to appeal her decision to suspend him. Mrs Highton responded by a letter dated 5 February 2007 stating that she had referred the Claimant's letter to Mr Cafferty. Thereafter, the Claimant entered into extensive correspondence with Mr Cafferty in which he continued to press the points raised in his letter of appeal. The Union did not at any stage deal conclusively with all the issues raised by the Claimant. In these circumstances, the relevant limitation period expired one year after the Claimant's letter of appeal, namely in January 2008. On this basis I find that the … complaint was made in time." (Mr Segal sought to explain to us how it came about that, as the Certification Officer records, there were no submissions before him on the time point. We do not think that it is profitable to explore this question. We are content to accept that the explanation does not reflect in any way on his conduct of the matter.)[12]As regards the substantive complaint, the Certification Officer said this:
"38. The issue as to whether the Claimant was 'facing disciplinary charges' at the time of his suspension is not straightforward. There are, however, two clear facts. First, when the Claimant was suspended on 16 January 2007, he was facing a disciplinary process under Rule I which could result in charges being put to him. Secondly, at the time he was suspended, no charges had been formulated or put to him and no decision had been made that such charges would be formulated and put to him. It is this latter proposition which Mr Cafferty's letter of 12 April and 24 July 2007 confirmed. The more obvious meaning to be given to the expression "faces disciplinary charges" is that extant charges have been put to the person to be suspended. However, the whole of rule c7.4 must be considered in context to test if this is the actual meaning and it is well understood that the rules of a Union are not to be construed as if they were a statute but are "to be given a reasonable interpretation which accords with their intended meaning; bearing in mind their authorship, their purpose and the readership to which they are addressed" (see Jacques v AUEW (1986) ICR 683). Approached in this way, I note that rule C7.4 was adopted in its current form in 2002, when rule C7.4.2 was added to what is now C74.1. I further note that since 2002 the Union has applied rule C7.4 so as to give the NEC a discretion to suspend members once it had been decided, under rule I.5.1, to investigate a potential disciplinary offence. I also note the differences between the two sub-rules. Rule C7.4.2 deals with a specific type of misconduct, namely financial irregularities, it is not restricted to a maximum period of suspension of 60 days and it is not subject to conditions of exceptional circumstances and the interests of the branch or the Union generally. Nevertheless, I find that where the same expression "faces disciplinary charges" appears in different paragraphs of the same sub-rule, it is to be given the same meaning. Examining rule C7.4.1 in isolation I note that the word "charge" appears not only in the expression "faces disciplinary charges" but also in the expression "until the charges are determined"
. This strongly suggests that what the member must face is actual charges, not potential charges. Examining rule C7.4.2, I note that there is no similar repetition of the word "charge" but that the charges in rule C7.4.2 must be "related to such allegations arising from a rule I investigation", namely allegations of financial irregularities. This formulation suggests that the allegation of financial irregularities is something different to the charges arising from a Rule I investigation and is another indication that to be facing a charge is something different to facing an allegation. Looking for guidance outside rule C7.4, I was directed to rule I .5. I note that in rule I .5.3 the word "charge" is used as meaning an actual charge, not a potential charge, whilst in rule I .5.1 the word is used more ambiguously and could refer to the allegations or complaints under investigation. Construed purposefully, however, I find that rule I .5.1 provides that there will or may be an investigation into whether any actual charges are justified. I find that such a construction is preferable to an interpretation of the word " charge " in Rule I .5.1 as meaning a mere allegation of wrongdoing which is entirely inconsistent with its use in rule I .5.3 and its use elsewhere in Rule I , where it unambiguously refers to an actual charge. 39. The major argument in favour of the Union's construction of the expression " faces disciplinary charges " is the inclusion within rule C7.4.2 of the notion that the suspension will continue " until the conclusion of the disciplinary investigation, hearing or appeal ". This suggests that the suspension can be imposed whilst the investigation is still being carried out, i.e. before any disciplinary charges are formulated or put to the member. However, I find that the inclusion of the possibility of suspension during the period of investigation is not conclusive in the Union's favour. There is no rule which prevents a disciplinary investigation continuing after a member is charged. Indeed this might be expected when new matters arise between the charge being put and the hearing. Furthermore, it is the practice of the Union to only put disciplinary charges to members about three weeks before the date of the disciplinary hearing, in accordance with paragraph 1 of Schedule D of its rules. There is therefore a period between when a decision is made under rule I .5.3 that a charge should be brought and the date upon which the actual charges are put. This is a period in which the disciplinary investigations may continue and the member be suspended under rule C7.4.2. Accordingly, the inclusion of the reference to " the conclusion of the disciplinary investigation " in rule C7.4.2 is not devoid of meaning on anything other than the Union's construction of the expression " faces disciplinary charges ". 40. Having analysed the relevant rules, I find that on both a literal and contextual approach, the predominant meaning to be given to the expression " faces disciplinary charges under rule I " is that the person must face actual charges or that a decision has been taken, pursuant to rule I .5.3 that a charge or charges should be brought. I have also had regard to the nature of the power given to the NEC by rule C7.4. A discretionary power to suspend a member from an office to which he or she has been elected is a very significant matter. This is recognised by the safeguards incorporated into rule C7.4.1 relating to exceptional circumstances and the interests of the branch or Union. Against this background it would not be surprising for the power to suspend to be exercisable only if there is sufficient evidence to charge a member. I find that for such a significant power to be exercised on a mere allegation, there would need to be a rule expressed with much greater clarity than is presently found in rule C7.4. 41. For the above reasons, I make the declaration sought by the Claimant that on or around 16 January 2007 UNISON breached rule C7.4.1 by suspending the Claimant from office. 42. When I make a declaration under section 108B(2) of the 1992 Act I must make an enforcement order under section 108B(3) unless I consider that to do so would be inappropriate. The Claimant's suspension under rule C7.4.1 expired by the effluxion of time on 17 March 2007. Mr Bakhsh is no longer suspended under rule C7.4.1. It is accordingly inappropriate that an enforcement order is made with regard to this breach of rule C7.4.1." THE ISSUES[13]Mr Segal challenges both aspects of the Certification Officer's decision. We will take them in turn. The Time Point[14]Mr Segal submitted that nothing in the correspondence between Mr Bakhsh and the Union constituted the "invocation" of an "internal complaints procedure". In our view that is correct. We accept that that phrase can properly be given a fairly wide meaning, so as – for example – to cover an appeal procedure. But it is essential that some recognisable formal procedure should be being followed. That seems to us to be inherent in the words themselves; but such a construction is in any event necessitated by the requirement of s-s. (7) that there be specific dates at which it can be said that the procedure is being invoked and at which it is concluded. None of the correspondence that we have seen is of that character. The reference in Mr Bakhsh's e-mail of 25 January to wishing to "appeal" might indeed suggest the invocation of a formal procedure; but it is common ground before us that the Rules provide for no appeal from a decision to suspend, and it is in fact clear from the closing paragraph of the e-mail, which we have quoted, that what Mr Bakhsh was asking Mrs Highton to do was to reconsider her decision. The correspondence that follows is essentially of the same kind: Mr Bakhsh and his representative are advancing points to those whom they took to be the effective decision-takers about the validity of the investigation and the suspension and there is nothing that could fairly be regarded as the invocation of a complaints procedure.[15]Mr Bakhsh in his moderate and frank submissions before us said that what he had intended by his e-mail of 25 January was that Mrs Highton's decision, which had been taken by way of "Chair's action", should be referred for confirmation or otherwise by the full Committee. But that is not what his e-mail says; and in any event a request of that kind would not seem to us to constitute the invocation of a complaints procedure either.[16]There was some debate before us as to whether there was in fact any "internal complaints procedure" which could have been invoked. We were referred to two documents, one setting out a Complaints Procedure issued by the Northern Region of UNISON, and the other a more general complaints procedure issued by the "Member Liaison Unit" of the Union in December 2005. Mr Bakhsh submitted that neither of these was appropriate as a means of challenging a suspension decision under rules C7.4.1 or C7.4.2. We are inclined to think he is right about this, but, as Mr Segal pointed out, it is not necessary to the Union's submission that there should have been a specific complaints procedure available: its essential point is the same whether the position is that there was an available procedure but it was not invoked or whether there was no procedure in the first place.[17]The appeal must accordingly be allowed. Nevertheless we should proceed to consider also the appeal against the decision on the substantive complaint. The Substantive Complaint[18]We see the force of the argument accepted by the Certification Officer that the phrase "faces disciplinary charges" refers only to a situation where a member has received a written notice of charge in accordance with paragraph 1 of Schedule D. "Charge" clearly seems to us to connote a formal charge and would not naturally be understood to apply to an allegation which is simply the subject of an investigation. The distinction between such an allegation and a formal charge would be well-understood and was indeed emphasised by Mr Cafferty in the passage from his letter quoted at paragraph 7 (7) above.[19]Yet if that is the correct construction it is impossible to make sense of the provision of rule C7.4.2 that a member who "faces disciplinary charges" can be suspended "until the conclusion of the disciplinary investigation , hearing or appeal". In the Union's system the disciplinary investigation precedes the laying of charges: that is clear from paragraph 1 of Schedule D.[20]The key to the solution is in our view to recognise that the phrase "faces disciplinary charges" is not necessarily the same as "has had disciplinary charges notified". It seems to us perfectly possible to read it as meaning, in effect, "faces the prospect of disciplinary charges": one can "face" a future event as well as a current fact. There would be no uncertainty in that approach: the initiation of an investigation into an allegation of misconduct (which may mature into disciplinary charges depending on the outcome of the investigation) is itself a formal step, requiring a decision of the relevant body under rule I5.1. Nor is it a step which can be taken capriciously or for an ulterior motive: the rule requires that the body in question must believe that reasonable grounds exist to think that the member may be guilty of an offence. On that basis rule C7.4.2 can be made to make sense without any distortion of the natural meaning of "charge".[21]Such a reading seems to us to conform to the likely intention of the rule-makers. It is the experience of all three of us that it is very usual for trade unions, as for employers and other bodies exercising disciplinary powers, to be able to exercise a power to suspend from the start of the disciplinary process, irrespective of the precise point at which formal charges are formulated; and it is not difficult to see that at least in some cases there might be real inconvenience if that were not so. Indeed the Certification Officer makes this very point at para. 26 of his decision in the Staunton case, which we set out at paragraph 27 below.[22]We would therefore have allowed the appeal on the substantive issue even if the complaint had been in time. CONCLUSION[23]We allow the appeal against the decision of the Certification Officer and dismiss the claim that his suspension was in breach of the Union's Rules. STAUNTON THE FACTS[24]Again, we can state the facts quite briefly:(1) Mr Staunton is a social worker employed by Plymouth City Council. He is a long standing trade union activist. He joined UNISON in 1994 and has held numerous positions within the Union. In 2006 he was branch secretary of the City of Plymouth branch.(2) On 5 December 2006 Mrs Highton decided that there should be an investigation under rule I 5.1 into allegations that he had used the Union's equipment and resources for purposes not permitted by it. She also decided that he should be suspended from office with immediate effect under rule C7.4.1: he was informed of his suspension by letter from Mr Nelson dated 6 December. A report of the investigation was submitted to Mrs Highton at the end of January 2007. On 30 January she gave authority for charges to be brought against Mr Staunton and authorised his suspension under rule C7.4.2 on the basis that the charges involved financial irregularities. He was informed of that decision by letter from Mr Nelson dated 31 January and told that a disciplinary hearing would take place between 3 and 5 April; the actual charges, however, were not notified until March.(3) Elections for the NEC of the Union were to take place in spring 2007. The closing date for nominations was 16 February 2007. Mr Staunton put himself forward for election, and receipt of his nomination details was acknowledged on 17 January. Under the Union's election procedures the eligibility of candidates for election is determined on the basis of their standing at the closing date for nominations, which was 16 February. By letter from the Union's Election Co-ordinator dated 28 February Mr Staunton was informed that he was ineligible to stand because he had been suspended from holding office. His candidature accordingly did not proceed.(4) The disciplinary hearing was in the event postponed from April to July 2007. Many, though not all, of the charges against Mr Staunton were upheld and he was expelled from the Union. THE PROCEEDINGS BEFORE THE CERTIFICATION OFFICER[25]Mr Staunton advanced two complaints before the Certification Officer –(1) that his exclusion from candidature in the NEC elections constituted a breach of s. 47 of the 1992 Act, which provides as follows: (1) No member of the trade Union shall be unreasonably excluded from standing as a candidate.(2) …(3) A member of a trade Union shall not be taken to be unreasonably excluded from standing as a candidate if he is excluded on the ground that he belonged to a class of which all the members are excluded by the rules of the Union; (2) that his suspension was in breach of the Rules.[26]The second complaint was dismissed because it was out of time, and Mr Staunton does not seek to challenge that decision. As to the first, the Certification Officer upheld the complaint. He considered first whether the case was caught by the provisions of s. 47 (3). The Union contended that it was, because, it submitted, where a member was suspended pursuant to the provisions of rule C7.4 the effect of that suspension was to preclude them from standing for office in the Union, and that persons so suspended accordingly represented a "class" within the meaning of the sub-section.[27]The Certification Officer rejected that submission. His reasoning appears at para. 26 of his decision, as follows:
"26. I note that neither C7.4.1 nor C7.4.2 provide expressly that those who are suspended are excluded from standing as a candidate in a relevant election. The words of exclusion are different in the two sub-rules. Rule C7.4.1 refers to the power to suspend a member from office and rule C7.4.2 refers to the power to suspend member(s) from holding office . However, neither party contended that the scope of suspension was different under the different sub-rules and I find that the scope of the exclusion is indeed the same in both sub-rules. Construing rule C7.4 as a whole, I find that, in its ordinary literal meaning, a suspended member is suspended from any office that he or she may hold during the period of suspension and not that he or she is excluded from standing as a candidate in elections for office within the Union. I see no grammatical reason why any greater scope should be given to the words. Indeed, the reference to " holding office " in rule C7.4.2 suggests that the suspension is not intended to be an exclusion from standing as a candidate. Going beyond the literal meaning of the words, I was invited by Mr Segal to imply into the rule a broader meaning, to include suspension from standing as a candidate. The basis upon which any such implication should be made was not explained. Certainly the rule does not require such an implication for it to make sense or to be capable of practical application. Looking at the context of the rule, I make two observations. First, the right of a Union member to stand for election is an important right of membership, as in any democratic organisation, and should not be taken away unless the members have so decided in a clearly expressed rule to that effect. Secondly, at the time that a rule C7.4 suspension is imposed, the member has not been found to have committed a disciplinary offence and it is therefore to be supposed that the suspension is not intended as a penalty. This latter point is one with which Mr Nelson appears to agree. His statement describes suspension under rule C7.4 as being " precautionary "
. Viewing suspension as a precautionary measure, it is readily understandable that it might be in the interests of the branch or the Union to temporarily remove a member from the office that he or she is currently holding in order to protect the integrity of an ongoing disciplinary process. It is less readily understandable how the interests of the branch or the Union are prejudiced if a suspended member is able to put his or her name forward as a candidate for the membership at large to decide whether he or she should be elected. On the basis that a suspended member is elected there are three likely outcomes. First, if the person is found not guilty in the disciplinary process (or the disciplinary action is discontinued), the person would take up office and would not have been disadvantaged. Secondly, if the disciplinary process is not concluded by the time the person would take up office, he or she would be unable to do so by virtue of the rule C7.4 suspension from holding office. Thirdly, if a person is found guilty, a sanction of debarment may or may not be applied as a final disciplinary sanction and the rule C7.4 suspension is superseded by the disciplinary penalty. Balancing such considerations, I find that there is no basis for the otherwise plain words of rule C7.4 to be construed so as to mean that a suspended member is also excluded from standing as a candidate. This conclusion is supported by a consideration of rule C2.9.2.1, which expressly excludes employees of the Union from eligibility " to seek or hold office ". The Union has therefore given thought to this concept within the same rule, rule C, but has not reproduced those or similar words in rule C7.4. Accordingly, I find that rule C7.4 is not a rule which excludes all the members of the class of suspended members from standing as a candidate and the Union cannot therefore rely upon section 47(3) as deeming the Claimant's exclusion as not being unreasonable. Having regard to this finding, there is no need for me to consider the third stage of the examination, namely whether rule C7.4 is a rule ' which provides for such a class to be determined by reference to whom the Union chooses to exclude '." He then proceeded to consider whether the exclusion of Mr Staunton was unreasonable within the meaning of s. 47 (1). As to that, his reasoning appears at paragraph 27, as follows: "27. As I have found that the Union cannot avail itself of the protection to be found in section 47(3) of the 1992 Act, it is necessary to determine whether the Claimant was unreasonably excluded from standing in the 2007 NEC election by virtue of section 47(1). As Mr Segal observed, section 47 does not contain any guidance on what constitutes unreasonable exclusion. On the facts of this case, however, it is apparent that the Union did not think that it was necessary to expressly consider the merits of the Claimant's exclusion as it was, in the Union's view, a requirement of rule C7.4 which followed from the fact of his suspension. For the reasons set out in paragraph 26 above, I find that the automatic exclusion of someone from standing as a candidate who is merely the subject of a precautionary suspension is prima facie unreasonable, in the absence of an express rule permitting such exclusion. As the Claimant argued, the effect of a precautionary suspension should be neutral. It should be of no greater effect than is necessary for the purposes of the disciplinary process. Its effect should not be to impose a penalty which might remain as a detriment to the suspended person, should the disciplinary proceedings be discontinued or the person be found not guilty. There may be cases in which it would be reasonable to exclude a suspended member from standing for a relevant office in the absence of an express rule excluding all suspended members, but the facts of each case would have to be considered so as to be able to defend the particular exclusion on the grounds of reasonableness. On the facts of this case, no special circumstances emerge which cause Mr Staunton's exclusion from standing as a candidate to be considered reasonable. Indeed, none were advanced by the Union. THE ISSUES[28]Mr Segal challenges both aspects of the Certification Officer's reasoning. We take them in turn. (1) S. 47 (3): Are Suspended Members Precluded from Standing for Office?[29]The Certification Officer's reasoning at paragraph 26 of his decision is persuasive and in our view right. Rule C7.4 does not in terms permit the prohibition of members who are facing disciplinary charges from standing for, as opposed to holding, office; nor do we believe that such an effect has to be implied. For the reasons given by the Certification Officer, there seems to us nothing absurd or unworkable in a situation where a member stands for an office which, if he were elected, he might be unable to take up for all or part of its term. It is essential to appreciate that the nature of suspension under rule C7.4 is indeed precautionary: no finding of a disciplinary breach has been made, and indeed – on this point we go beyond the Certification Officer, who had a different view of the effect of the rule (see our decision on Bakhsh ) – no disciplinary charges may even have been laid. It is thus entirely on the cards that no charge, nor in any event any finding of guilt or disciplinary sanction, may eventuate. What is more, there is no certainty that the disciplinary process will even be continuing by the time that the office in question falls to be filled: there is a considerable lead time between the date of the election (and, still more, the nomination date) and the date for taking up office. It would be most unfortunate if a member were prevented from exercising his democratic right to stand for office – and, likewise, other members were deprived of the chance to vote for him – in circumstances where he might in the event be entirely free to take up the office if elected. It is of course true that it will also be unfortunate if a suspended member who has been elected is in the end unable to take up office, whether because the disciplinary proceedings have not been concluded or because they have resulted in a finding of guilt and in the member being debarred from holding office under rule I 8(4) (see para. 4 above); but that is no worse than the suspension or debarring of members already elected, which will inevitably happen from time to time. Ms. Gardiner also submitted that members voting for a suspended candidate would do so with their eyes open. That may reinforce the point, but we do not base our decision on it since it was not clear to us what mechanisms there might be to ensure that members were aware that a candidate was subject to suspension.[30]Mr Segal advanced various counter-arguments, which we will consider in turn.[31]First, he submitted that the natural meaning of the phrases "suspend from office" or "suspend from holding office" which appear in rule C7.4 includes also "suspend from standing for office". We cannot accept that. Holding office and standing for office are not the same thing; and indeed, as a matter of English, a person who is not permitted to stand for office cannot properly be described as having been "suspended" from doing so – on the contrary, he had been absolutely precluded. If the Union has a case on this point, it must depend not on the actual language but on what must (necessarily) be implied from that language.[32]Secondly, Mr Segal placed reliance on the terms of rule I 8(4), which we have set out at paragraph 4 above. He said that it was common ground before the Certification Officer, and appeared also to be accepted by Ms Gardiner, that the effect of that rule was that a member who had been so debarred was ineligible to stand for office. Ms Gardiner's position as set out in her skeleton argument was in fact rather more sophisticated. She said:
"The Respondent concedes that this Rule would include "seeking office" which would commence in the relevant period of suspension. However, it would not prevent a member from seeking office, whilst suspended, for a position that would commence after the period of suspension had concluded."
We see the force of Mr Segal's point about the case where the member is subject to a disciplinary debarring which covers the whole – or even, it may be, a part – of the term of the office for which he wishes to stand. It may well be (though we prefer not definitively to decide this because we heard no argument to the contrary) that rule I 8(4) by necessary implication prevents a member standing for an office part of whose term falls within the suspension period. But we do not regard the situation of a precautionary suspension under rule C7.4 as analogous. In the case of the application of rule I 8(4) the member will have been definitively barred from the benefits of membership, which includes holding office, for a prescribed period as a result of a finding of a disciplinary breach. In a case falling under rule C7.4, by contrast, there will, as we have already pointed out, have been no such finding, and the suspension may come to an end at any point.[33]Mr Segal's third point was that the Certification Officer's reliance on rule C2.9.2.1 was misplaced: he submitted that the rule in question was irrelevant because it relates to restrictions on employees rather than Union members. The point in question was not central to the Certification Officer's reasoning, and nor is it to ours; but we can see nothing wrong with it as far as it goes. (2) S. 47(1): Was Mr Staunton's Exclusion Unreasonable?[34]As the Certification Officer points out, the Union did not in fact at the time of making the decision to exclude Mr Staunton give any consideration to whether there were particular factors in his case that justified the exclusion: it believed that it was giving effect to an automatic rule. That does not, however, seems to us to be fatal. The statutory test of reasonableness must be objective; and if, on the evidence produced to the Certification Officer, Mr Staunton's exclusion was shown to have been reasonable, it would not in principle matter that the reasons relied on had not been properly appreciated or articulated at the time of the initial decision. But it remains the fact that good reason for the exclusion had to be shown to the Certification Officer. As he observed, no case was in fact advanced to him beyond the fact that Mr Staunton was as at the date that nominations closed the subject of a suspension under rule C7.4. In our view that cannot by itself and without more be regarded as justifying his exclusion from standing.[35]Mr Segal submitted, to quote from his skeleton argument, that:
"It is entirely reasonable for a Union to be able to prevent someone standing for an office they will not, or are likely not be able to, take up; and a rule of practice so providing is ( pace the CO) less of an infringement on the democratic rights of Union members than the power to remove a member, already democratically elected, from office pending conclusion of a disciplinary process – which latter power UNISON clearly has."
It is, with respect, putting it too high to say that a person facing disciplinary charges will not, or will not be likely to be able to, take up an office to which he is elected. He may, as appears from our decision in Bakhsh , not even have been charged; and even if he has been it remains to be seen whether he will be found guilty and if so what sanction will be applied. While there is of course a risk that he may not be able to take up office, the mere fact that there is such a risk is insufficient by itself to justify the infringement of his democratic rights and those of the other members who might have wished to vote for him. That would be our own view in any event; but we would observe that this is in any event a point on which the judgment of the Certification Officer, with his specialist expertise and experience in this field, is entitled to particular respect. We do not accept that the situation is comparable with that where a member already holding office is suspended under rule C7.4. Of course it is unfortunate in such a case that the member is unable to exercise the function for which he was elected in circumstances where he may ultimately not be disciplined at all. But that cannot be helped (though it may be a reason for exercising particular care in imposing a suspension). It is not a reason for preventing a member even standing, in circumstances where it cannot be known whether the suspension will still be operative at the time that the office falls to be taken up. CONCLUSION[36]We accordingly dismiss the appeal in Mr Staunton's case.