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Victory for the Unison Four
In a landmark judgment, the public-sector union, Unison, has been found guilty of wrongly disciplining four union activists, all Socialist Party members. In reality, the Unison Four were targeted for standing up for their members and campaigning for a fighting democratic union. Following on from our previous article (Defending Union Democracy, issue No.141, September 2010) SOCIALISM TODAY looks at this latest ruling.
AN EMPLOYMENT TRIBUNAL has decisively vindicated the Unison Four, four Socialist Party activists disciplined (banned from office for up to three years) by the right-wing Unison leadership for defending rank-and-file democracy. Their ‘crime’ was issuing a leaflet, supported by their branches, criticising the union’s Standing Orders Committee (SOC) for excluding over 50 vital branch resolutions – a third of all motions – from discussion at the 2007 Unison conference. In a crude attempt to derail this challenge to the leadership, the four were accused of racism and disrespect for the SOC. When the focus should have been on fighting public-sector cuts, the four were dragged through three years of tortuous money-wasting investigations and hearings.
Now an Employment Tribunal (presided over Employment Judge, Ms H Grewal) has completely exonerated the four. The judgment in the case of Glenn Kelly (Bromley), Onay Kasab (Greenwich), Brian Debus (Hackney), and Suzanne Muna (Tenants Services Authority) versus Unison, issued on 27 January 2011, states: "The unanimous judgment of the Tribunal is that all the Claimants were unjustifiably disciplined, contrary to section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992". While Unison was represented by a barrister (Mr D Panesar), the four were very effectively represented by Glenn Kelly. (Numbers refer to the paragraphs of the Judgment, which can be accessed at: http://www.socialistparty.org.uk/unison/judgement/judgement.pdf)
THE FOUR WERE accused of racism on account of the cartoon on the leaflet criticising the SOC. The cartoon, says the Judgment, "appears at the top of the leaflet… depicting three monkeys, one of whom is covering its ears, another its eyes and the third its mouth. It is obvious to anyone looking at the cartoon that it is meant to represent the well-known image of the three wise monkeys who see no evil, hear no evil, and speak no evil". (32)
"All four Claimants are committed anti-racists and have fought against racism. They quite reasonably assumed that anyone who saw the leaflet would understand the cartoon to be saying that the SOC was out of touch in closing its minds to and ignoring issues that concern the membership. The cartoon was not a pictorial depiction of the members of the SOC (of whom there are 15) but a representation of its attitude towards motions that were submitted to it. It never occurred to them that anyone would take it out of context and consider it to be racially offensive because one member of the SOC, the chairman, was a black man. Such a possibility was never raised with them by any of the individuals who saw the leaflet". (36)
The leaflet was circulated, for instance, to members of the branch committee in the Housing Corporation branch (predecessor to the Tenants Services Authority), including the Equalities and Diversities Officer. "None of them advised her [Suzanne Muna] that the image was in any way inappropriate or that it could in any way be construed as being racially offensive". (33) In the Hackney branch, Brian Debus circulated the leaflet to about 21 people, including black members who were delegates to the conference and subsequently helped distribute the leaflet. "At no stage did any of the recipients of the leaflet indicate to Mr Debus that it was in any way inappropriate or that it could be construed as being racially offensive".
According to the evidence, Malcolm Cantello, president of Unison and chair of the national delegate conference, asked Kevan Nelson, Head of Democratic Services, on 18 June, to investigate the leaflet produced by the four branches. "According to Mr Nelson’s evidence", says the Judgment, "[Cantello] did not say to him that he had received complaints that the leaflet was racially offensive". (38) However, Clytus Williams, chair of the SOC, in his evidence, claimed that he had complained to the president, Cantello, that the leaflet was offensive and had caused racial offence to him and other black members.
On the basis of the evidence, the judge says: "We do not accept Mr Williams’ evidence (in his witness statement) that he raised concerns about the leaflet with Mr Cantello on the evening of 18 June 2007 because he had found the leaflet offensive and it had caused racial offence to him and other black members. His evidence about when he first saw the leaflet was inconsistent and not credible". (39)
Monday 18 June was the second day of Unison’s national local government conference, which preceded the National Delegate Conference that took place between Tuesday 19 June and Friday 22 June. The leaflet was given out at the local government conference.
The judge finds, as a matter of fact: "We find that Mr Williams did not raise concerns about the leaflet with Cantello on the Monday evening, and that the first time he saw it was on the Tuesday morning at the meeting of the SOC". (39) The clear implication of this fact is that the investigation, the first stage of the disciplinary procedure, was instigated against the four before allegations of racism were raised.
Beverly Miller, chair of the National Black Members Committee, raised the allegation of racism against the leaflet in a point of order at the beginning of the National Delegate Conference. Later, when interviewed by John Freeman and Gloria Mills (who were investigating the allegations on behalf of the Unison leadership), Miller referred to complaints about the leaflet: "She said that black members had been upset about the leaflet and had approached her. They felt that it was directed at Clytus Williams. She said that she had not liked the leaflet and the use of the image of monkeys had been the main problem. The cartoon had appeared to her to be three different faces of Mr Williams". (57)
At this point the judge interjects a comment in the Judgment: "It must be emphasised that the monkeys in the cartoon could not by any stretch of the imagination be seen to be a caricature of Mr Williams".
Bev Miller went on to say: "She thought it [the cartoon] had been a mistake and that there had been no intention to be racially offensive. There had been a divided view in the Black Members Committee about the leaflet. No vote had been taken but she thought that those against the leaflet outnumbered those who did not mind it". (57)
The disciplinary report drafted by Freemen and agreed by Mills concluded in relation to the three wise monkey cartoon that there had been no racial intent, but there had been a lack of care in failing to consider how the cartoon might be regarded by some members, especially black members. (58 and 60)
The Judgment, however, categorically rejects this view: "Looking at the context in which the cartoon was used (ie to depict the attitude of the SOC towards controversial motions) it cannot be said that any reasonable person would or should have realised that it would cause racial offence, and that not doing so was somehow ‘careless’. That is reinforced by the fact that [it] never occurred to many people who saw the cartoon before its publication. These individuals included an Equalities and Diversity officer and black members". (90)
The Judgment also strongly refutes the claim that the four were not prepared to apologise for any unintended offence the leaflet might have caused, or to accept that some people in the union had found it offensive. "The authors (Freeman and Mills) of the [disciplinary] report also found regrettable the arrogant denial and defence of their position when they could have apologised immediately in their response to the preliminary inquiry". This criticism was later repeated by the disciplinary panel. However, the judge notes: "That seems to have completely overlooked that the four claimants had immediately apologised to the SOC and the National Black Members Committee when they realised that some individuals had found it racially offensive". (60)
The four had written to the SOC immediately (20 June) explaining why they had produced the leaflet in support of their call for a reference back of the SOC to ensure discussion of the rejected resolutions, explaining the use of the three wise monkeys in the cartoon: "The letter concluded that whilst they categorically refuted the charge of racism against their branches and branch officers, if the use of the cartoon had caused any unintentional offence they would apologise to all members of the SOC and conference delegates". (47)
Subsequently, the four wrote (21 June 2007) to all members of the National Black Members Committee: "The use of the Asian Buddhist proverb cartoon ‘see no evil, hear no evil and speak no evil’ is a widely used image of political satire to express a view of not being heard, it is not in any shape or form connected with an intent to imply an attack on somebody’s race, as such we hope you would accept that there was no intent whatsoever to cause offence. Indeed, we do not believe for a moment that BME members from the branches would have sanctioned the leaflet and distributed it, had it had any hint of that connotation. However, we acknowledge that unintentionally we may have caused offence and therefore offer our sincere apologies". (48)
Singled out for attack
THE JUDGMENT ALSO makes it clear that the Unison leadership intervened to strengthen the disciplinary charges with regard to the alleged lack of care in giving unintended racist offence. In their report, Freeman, with Mills’ agreement, recommended that the four should attend ‘racial awareness training’. This was bad enough, an insult to four activists with an outstanding record of fighting racism. But in the sixth version of the disciplinary report – at the insistence of Kevan Nelson, Head of Democratic Services – this issue was raised to the level of a disciplinary offence. The "change in the recommendation was not due to a change in the view of the severity of that particular complaint, but in order to enable their recommendations [ultimately, a ban from office] to be implemented". (65)
The Judgment does not accept that it was necessary for Unison to impose penalties such as expulsion or banning from office in order to ensure that the four would undertake racial awareness training. It also notes that Matthew Waterfall, chair of the Hackney branch, was asked to undertake racial awareness training, even though he was not charged with disciplinary offences. The Judgment also notes, however, that up to now no attempt has been made to involve Matthew Waterfall in racial awareness training: "To date this had not happened and no-one at Unison had followed it up". (70)
The judge notes that the disciplinary sanctions against the four were far more severe than those taken against others. While the four were faced with severe sanctions, others who had actually caused offence did not face disciplinary action. "We also had evidence before us of other occasions when individuals had inadvertently caused racial offence, used monkey cartoons inappropriately, and not treated their colleagues with respect or dignity". The Judgment gives four examples. "In none of these cases was any disciplinary action taken against the individuals concerned". (79)
The judge comments on the fact that in the ET hearing Unison tried to strengthen its allegation of racism on the part of the four. "There was a suggestion in the further particulars and legal arguments that the claimants were also disciplined for asserting that the SOC were monkeys or monkey-like or had the attributes of monkeys. It is clear from the investigation report, the charges levelled against the claimants and the evidence of Ms Mansell-Green that the claimants were not in fact disciplined for that". (84)
The Judgment is absolutely unequivocal in rejected the charge of racism against the four: "Looking at the context in which the cartoon was used (ie to depict the attitude of the SOC towards controversial motions) it cannot be said that any reasonable person would or should have realised that it would cause racial offence, and that not doing so was somehow ‘careless’." (90)
THE TRIBUNAL FOUND that the main reason for disciplinary action against the four was that they produced a leaflet criticising the SOC for rejecting a large number of branch resolutions. In total, the SOC ruled out of order 55 motions and 13 rule amendments. These included resolutions from the four branches concerned on the election of officials, the right of branches to initiate lawful ballots on industrial action, Unison’s affiliation to the Labour Party, and other issues of union democracy. (23-28)
Under the headline ‘Whose conference’, the following text appears on the leaflet produced by the four Unison branches: "This year the Standing Orders Committee (SOC) rejected an unprecedented 60-plus motions submitted by branches representing nearly a third of all motions submitted. The motions covered important and controversial issues such as organising industrial action, the election of union officials, and New Labour’s attacks on public services. At appeal against rejections, as soon as one SOC objection was effectively rebutted, another was immediately introduced. Were these motions rejected because they were controversial? Our Conference has a right to discuss union democracy and member controls of a fund, disputes and branch support structures". (Quoted in para 32 of the Judgment). This was followed by, ‘Let Branches decide’, and on the right there is a picture of three hands holding up ballot papers containing the words ‘Union Democracy’, ‘Election of Officials’ and ‘Our Motions’ with a ‘x’ after each one. This is the text that was allegedly ‘offensive’ and ‘disrespectful’ to the SOC!
The Judgment summarises the conclusions reached by Freeman and Mills in their disciplinary report: "The production of the leaflet had shown total disregard for the [conference] processes and in attacking the SOC and imputing improper considerations on how it reached its decisions the authors of the leaflet had shown contempt and disrespect for the SOC as an elected body and for its members". (61)
"Under ‘production of the leaflet’ the conclusion was that the leaflet challenged the decisions of an official body within the democratic lay structure of the union and there had been no need for such a leaflet to be produced". (62)
The attack on "the integrity of the members of the Standing Orders Committee" was said to be in breach of various rules. Brian Debus, then chair of Hackney branch, was additionally charged with misusing branch funds (as Hackney Unison had printed the leaflet). However, Matthew Waterfall, secretary of Hackney branch – who is not a member of the Socialist Party – was not charged.
At the disciplinary hearing, Freeman claimed that "Mr Kelly held the view that the SOC was biased and corrupt and was somehow acting on behalf of the hierarchy of the union to prevent debate of controversial motions and this was the view that was presented in the leaflet". (72)
On the charge of attacking the integrity of the SOC, "the panel concluded that the leaflet had caused upset to the SOC and had involved a premeditated campaign to attack the SOC. Ms Mansell-Green said that the panel had taken the leaflet as alleging that the SOC made decisions about motions to be accepted or rejected on political grounds, depending on whether they were controversial. In the tribunal’s view that would in effect amount to an assertion that the SOC was acting in breach of the union’s rules. She said that it was unacceptable criticism of a body of lay members who worked very hard and had [a] difficult job to ensure that the union was not put at risk through inappropriate discussion and decision making. Ms Mansell-Green said that the suggestion that the SOC made its decisions on political grounds was outrageous as was the suggestion that the SOC was influenced by paid and unelected officials. The claimants had not made that suggestion but that was how the text of the leaflet had been interpreted by the union". (75)
The Unison leadership was, in reality, far more concerned about the challenge to the SOC – and indirectly to the leadership – than it was about alleged inadvertent racist offence. Ms Mansell-Green "said that they were particularly concerned at the attacks on the integrity of the SOC. It was quite clear from the tenor of Ms Mansell-Green’s evidence that that was regarded far more seriously than the unintentional and inadvertent causing of racial offence". (77) This issue, that the SOC was breaking union rules by excluding legitimate resolutions and that the four were being disciplined for protesting about this, brought the issue squarely under the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Judgment concluded: "We are satisfied that the Claimants genuinely believed that their motions were not in contravention of the union’s rules for the reasons that they gave when they appealed and to us in evidence. It is irrelevant [from a legal point of view under the TULR(C) Act 1992] whether they were correct or not in their belief. What is important is that they genuinely believed it and had reasons for doing so. They, therefore, believed that the reason for rejecting them were that these were controversial matters that the union and the SOC did not want debated. The Claimants made the assertion that they did about the SOC believing it to be true. They raised the matters that they did in the leaflet in an attempt to canvass support to get the motions referred back at the start of Conference. We are satisfied that they made the assertion in good faith and that they had no ulterior motive for making it. In the circumstances, it is not necessary for us to decide whether the assertion was in fact true or false". (92)
The Judgment concludes that "the claimants were unjustifiably disciplined". (93)
Continuing the struggle
UNISON USED TWO legal arguments (as distinct from factual claims) in an attempt to defeat the four. One argument (already referred to) was that the charge of carelessness in relation to unintended racial offence was, in fact, the main charge and the four would have been disciplined on this charge alone. The significance of this argument is that discipline on grounds of (unintentional) racism would not be covered by the TULR(C) Act 1992. On the other hand, disciplinary action against the four for challenging the SOC for breaking union rules over the resolutions is covered by the Act.
The judge, however, completely rejected this argument. She found that no reasonable person would have found the three wise monkeys cartoon to be racist, and she did not accept that the four could have been banned from office on the basis of inadvertent racism. The judge concluded that "it had not been shown that the Claimants would have received the disciplinary sanctions that they did for having caused unintentional racial offence by the use of the cartoon in the absence of the assertions against the SOC". (84) At the same time, Unison’s own evidence made it clear that the main charge against the four was their challenge to the SOC (alleged ‘disrespect’ for the SOC).
The other legalistic argument from Unison was that this Employment Tribunal was not entitled to make findings on a number of facts which had been decided by a previous Tribunal (a legal doctrine known as ‘issue estoppel’). (9) The judge accepted there was a link between the two cases, as both related to the same leaflet. However, the issues in the two cases were different. In the first case, under the Employment Equality (Religion or Belief) Regulations 2003, the four argued that they had been subject through disciplinary action to discrimination and harassment on grounds of their Marxist/Trotskyist beliefs and membership of the Socialist Party. "The issue in the case before us was whether the claimants had been banned from holding office for a period of three to five years because they had asserted that the Standing Orders Committee had been acting in breach of the union rules or because of the manner in which they had done it. The two cases deal with different periods of time and different decisions made by different individuals".
"We accept that we are estopped from deciding and reaching any different conclusions on the issues that were determined by the previous Tribunal. We do not, however, accept that we are bound by every finding of fact made by that Tribunal. It is for us, having heard all the evidence, to make the findings [of] fact that we think are relevant to the issues that we have to determine". (15)
It is possible that the Unison leadership will waste more time and money in pursuing an appeal on these legal issues to an Employment Appeals Tribunal. No amount of legal wrangling, however, can erase the clear findings of fact made by this Tribunal.
The Judgment confirms what activists knew already: the disciplinary action against the four was an attempt to neutralise the activity of four of those at the forefront of the struggle to build a democratic, fighting union that would mobilise to protect members’ pay, jobs, pensions and other benefits. The Judgment in this case, moreover, is in marked contrast to the reactionary, politically biased Judgment (of Employment Judge Weiniger) in the earlier Tribunal. Almost incredibly, his judgment justified discrimination and harassment against Marxists/Trotskyists in the union. He made clear his open ideological support for free-market capitalism and opposition to any philosophical trend that seeks to change the existing order of society. (See Socialism Today No.141, September 2010, Defending Union Democracy)
Unison members (and trade union activists generally) will welcome this Employment Tribunal Judgment as a blow to a union leadership that stands in the way of building a democratic, fighting union and a great encouragement to those who are fighting for rank-and-file democracy. The campaign to transform Unison into a democratic, fighting union continues – and will intensify in the face of savage Con-Dem cuts.
At the AGM of Hackney Unison (2 February), with over 250 rank-and-file members present, Unison members demanded that the regional official explain the actions of the Unison leadership in the light of the Judgment. He refused to respond on the spurious grounds that the case is ‘sub judice’. In defiance of the Unison leadership, the meeting overwhelmingly elected Brian Debus to the post of branch education officer. Significantly, the meeting also voted overwhelmingly for a motion calling on all Labour councils to pass needs-based budgets instead of voting through cuts.