Case - Unison v. Kelly (Court of Appeal)

[2012] IRLR 951, Court of Appeal - Deshpal Panesar QC
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This is an appeal from Unison v Kelly [2012] IRLR 442, heard in the EAT.

The ET had found that the respondent members had been unjustifiably disciplined contrary to the Trade Union and Labour Relations (Consolidation) Act 1992 s 64. A separate claim alleging direct discrimination and/or harassment under the Employment Equality (Religion or Belief) Regulations 2003 reg. 3 and reg. 5(1) had been dismissed. Unison appealed, arguing that ( inter alia) the restrictions on trade union discipline imposed by ss 64 and 65 contravened Article 11 ECHR, the right to freedom of assembly and association.
The EAT dismissed the appeal, holding that there was an important public interest in s 65(2)(c), and that Article 11(1) had not been infringed – but even if it had, then s 65(2)(c) would have been justified under Article 11(2). In a lengthy judgment, the EAT held that the Tribunal was correct in finding that it was 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 under Article 10 entitled union members to reasonably express their views, and the right to freedom of association under Article 11 entitled union members generally to influence the policies and actions of their union. The disciplinary measures in question constituted a serious interference with those rights. The EAT rejected this argument, and subsidiary arguments which had been advanced by the appellants.
Unison has now been given leave to appeal to the Court of Appeal, in relation to the Article 11 issue which had been raised at the EAT. At a hearing on 17 July 2012, the respondent members applied successfully for an order under CPR r 52.9(1)(c) that the appeal should only be allowed to proceed on the basis that the appellant will not seek costs again the respondent if the appeal succeeds. One of the considerations cited by the judge was the general public interest of the Article 11 point, and the importance of the court hearing full argument on this point. The issue is of significance to the trade union movement more generally: it bears directly on the way in which the parties’ Article 10 and 11 rights are to be balanced.
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