Massey v Unifi
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Wall,Lord Justice Pill |
| Judgment Date | 31 July 2007 |
| Neutral Citation | [2007] EWCA Civ 800 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2006/2034(A)+2034 |
| Date | 31 July 2007 |
[2007] EWCA Civ 800
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE PETER CLARK
UKEAT/0223/04/MAA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Wall and
Lord Justice Maurice Kay
Case No: A2/2006/2034(A)+2034
Mr James Laddie (instructed by Ford & Warren) for the Appellant
Mr Philip Jones (instructed by Simpson Millar) for the Respondent
Hearing date: 1 + 2 May 2007
Judgement
By section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992, a member of a trade union has the right not to be unjustifiably disciplined by the union. Jurisdiction in relation to the determination of unjustifiable discipline is conferred upon Employment Tribunals (section 66). However, upon a finding of unjustifiable discipline, an Employment Tribunal had no jurisdiction as to remedy prior to 31 December 2004. That was vested in the Employment Appeal Tribunal, exercising original rather than appellate powers. This case was governed by that somewhat odd procedure which has now been superseded so that Employment Tribunals have been given jurisdiction in respect of both liability and remedy (Employment Relations Act 2004, sections 34 and 57, and Schedule 2).
The appellant, Mrs Stella Massey, was found by an Employment Tribunal to have been subjected to unjustifiable discipline by her union, UNIFI, which has since become part of the respondent, Amicus (“the Union”). The decision of the Employment Tribunal was on 9 January 2004. It upheld three of seven complaints made by Mrs Massey. On 3 August 2004, the Employment Appeal Tribunal allowed in part an appeal by the Union with the effect that now two of the complaints remain established. The unjustified discipline is in the form of (1) a motion of no confidence in Mrs Massey passed by the Union's Royal Bank of Scotland National Company Committee (NCC) on 25 September 2002 and (2) a decision by the Appeal Committee (AC) made on 7 January 2003 debarring her from holding office in the Union for a period of two years.
Mrs Massey joined the Union in 1964 and became actively involved in it. She was a member of its National Executive Committee from 1992 until 7 January 2003. She fell into dispute with her colleagues over the appointment of trustees to the Royal Bank of Scotland Pension Fund. Until 2002 the Union had nominated trustees. However, in that year it negotiated an agreement with the Bank that thenceforth it would suggest “preferred candidates” for election as trustees. Mrs Massey did not put herself forward for consideration as a preferred candidate. At a meeting of the NCC (which Mrs Massey did not attend) it was decided that three prominent members of the NCC would be put forward as the preferred candidates. They were all working as opposed to retired members of the Pension Fund. Mrs Massey had retired from the Bank in 2001. In the event, 91 candidates stood for election, including Mrs Massey. They were each required to submit a pen portrait for distribution to the electorate. Mrs Massey submitted one which, after amendment by the Bank, read:
“Pensions are under increasing attack. Until now we have had 'Nominated Trustees'. We now have 'Preferred' candidates, but I urge you to look beyond these and vote for an independent trustee.
While working part-time for Nat West I have also successfully managed a property investment business and a share portfolio. I have been deeply involved in pensions issues, and have spent ten years on NWSA Management Committee, UNIFI Executive and Nat West European Council. I recognise the value of independent judgement.
The Pension Fund does not belong to the Bank, the Unions, or even the Pensioners' Committee. It actually belongs to you, the staff, ex-staff and pensioners, to whose interests I offer total commitment.”
The Bank distributed the pen portraits to the electorate on 2 September 2002. Ms Shenton – one of the preferred candidates and the chair of the NCC – complained about Mrs Massey. On 6 September, Mr Ed Sweeney, the General Secretary of the Union, wrote to Mrs Massey as follows:
“Dear Stella
It has been brought to my attention that you are standing as an independent candidate in the current election for Member Nominated Trustees of the RBS Pension Fund.
I understand that you were present at several of the Royal Bank of Scotland National Company Committee and General Purposes Committee meetings where decisions were taken on nominating the Union's preferred candidate in these elections. I also understand that at no time during this process did you seek a nomination as the Union Preferred Candidate in these elections. Furthermore, you did not inform your National Company Committee colleagues of your intention to stand as a Member Nominated Trustee.
Given your position as an NEC member representing the Royal Bank National Company Committee, I am requesting that you withdraw your nomination forthwith.”
There followed what the Employment Appeal Tribunal described as “strong-minded correspondence” between Mrs Massey and Mr Sweeney. Ms Shenton and others pressed their complaints and, on 25 September, the NCC passed the No Confidence motion.
All of the preferred candidates were duly elected. Of the unsuccessful candidates Mrs Massey received the highest number of votes. The complaints about her were then considered by the AC on 7 January 2003. She was not able to attend but the AC proceeded in her absence. She had provided a written submission. Nevertheless, the AC found the complaints proved and debarred Mrs Massey from holding any office in the Union for two years.
On 14 January 2003 Mrs Massey saw her general practitioner and complained of “anxiety” and “mild panic” in the context of “problems with Union” which had been in existence “since September”. The GP notes refer to subsequent consultations and detail stress, anxiety and insomnia until August 2003. The doctor certified her condition until October of that year.
On 3 April 2003 Mrs Massey presented an originating application to the Employment Tribunal, complaining of unjustified discipline. I have recounted how her complaints were processed with the result that, in the end, two were sustained – the No Confidence vote and the two year bar from holding office. Pursuant to the two-stage procedure which then existed, she then made an application to the EAT for compensation. That application was due to be heard on 25 November 2004 but, sadly, Mrs Massey suffered a stroke on 15 November and the hearing was adjourned. It did not take place until 18 and 19 July 2006, at which time she was still unfit to attend and give evidence in person. On 7 September 2006 the EAT (HHJ Peter Clark, Mr A E R Manners and Mr D Welch) awarded compensation in the sum of £17,000.
The figure of £17,000 was arrived at by aggregating £7,500 in respect of injury to feelings and £12,500 in respect of damages for personal injury and then discounting the total of £20,000 by 15% by reference to Mrs Massey's contribution pursuant to section 67(7) of the 1992 Act. The figure of £12,500 was the result of an apportionment exercise, the details of which will have to be considered later. The EAT declined to award a sum by way of aggravated damages. Virtually the whole of the approach of the EAT is challenged by one side or the other on this appeal and cross-appeal.
The statutory provisions
The relevant provisions of the 1992 Act are in the following terms:
“64 (1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union …
67 (5) The amount of compensation awarded shall, subject to the following provisions, be such as the Employment Appeal Tribunal considers just and equitable in all the circumstances …
(7) Where the Employment Appeal Tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of compensation by such proportion as it considers just and equitable having regard to that finding.
(8) The amount of compensation shall not exceed [£60,100] … and … shall not be less than [£5,600].”
Issue 1: injury to feelings
The approach of the EAT to injury to feelings is set out in these two paragraphs from the judgment.
“19 … in making our assessment we must be careful to disentangle the two relevant tortious acts from other events for which the claimant is not entitled to be compensated but which in fact have contributed to her injury to feelings. In particular, the five other complaints of unjustifiable discipline which failed; her complaints of breach of the Union rules now before the Certification Officer; the stress of that and the present litigation; the criticism and anger levelled at her by her colleagues on the NCC after she put herself forward in the Pension Trustee election without informing them of her intentions and the contents of [the] pen-portrait which the [ET] found, albeit made in good faith, challenged the impartiality of the preferred candidates drawn from the NCC. Finally, we discount from our assessment the apparent ostracism of the claimant by her fellow members when she attended the TUC in September 2004.
20 On the other hand we accept … that the claimant, whose standing in the Union and participation in its affairs was of great personal importance to her, that she was, in Dr Sambrook's view, mortified by what happened to her on the two occasions of unjustified discipline; being barred from office was a serious event from her perspective; she...
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