THE FAIR EMPLOYMENT TRIBUNAL

CASE REF:	152/05FET, 1064/05, 92/06FET

CLAIMANT:			Joseph Bowers		

RESPONDENT:		1.	Unite (the trade union)
				2.	Mr Peter Williamson	

DECISION

The unanimous decision of the Tribunal is as follows:
(A)	The claimant’s claims of political discrimination in Case 1 are not well-founded.  Accordingly, all of those claims are dismissed.
(B)	By reason of the conduct complained of in Case 2, the claimant was “unjustifiably disciplined” by Amicus, within the meaning of Article 31 of the Trade Union and Labour Relations (Northern Ireland) Order 1995.
(C) 	All of the claimant’s Case 3 complaints are not well-founded.  Accordingly, all of those complaints are dismissed.
(D)	The claimant’s complaint of victimisation discrimination in Case 1, against both respondents, is well-founded.  It is ordered that Unite shall pay to the claimant the sum of £10,240 compensation.  (That sum is made up of a principal sum of £8,000 and £2,240 interest).

Constitution of Tribunal:

Chairman:		Mr P Buggy
Members:		Mrs G Savage
			Mr M Roddy	

Appearances:
The claimant appeared in person.
The respondent was represented by Mr G Daly, Solicitor, of Francis Hanna & Company, Solicitors.

REASONS
1.	The conduct which is the subject of complaint in these proceedings occurred during the period from April 2005 until September 2006.

2.	Throughout that period, the claimant was a member of Amicus, the trade union (“Amicus”) and the second-named respondent, Mr Peter Williamson (“Mr Williamson”) was the local Regional Secretary here in Belfast.

3.	Subsequently, Amicus has become part of a larger union, Unite.  It is agreed between the parties that Unite has succeeded to any relevant legal liabilities of Amicus in connection with these proceedings.  Accordingly, with the agreement of both parties, we ordered the substitution of Unite, the trade union, in place of Amicus (which had previously been named as the first respondent).

4.	The claimant was employed as a full-time official of the trade union MSF.  That employment came to an acrimonious conclusion in the early part of this decade.  After that termination of employment, he continued to be a member of MSF.  When MSF subsequently merged with the AEEU, to form Amicus, he became a member of Amicus.

5.	The merger process which had resulted in the creation of Amicus was concluded in January 2004.  Prior to the commencement of the proceedings with which this Decision is concerned, the claimant had been the claimant in respect of three earlier sets of proceedings, which he had brought either against MSF or against Amicus:

(1)	In December 1995, the claimant brought employment tribunal proceedings against MSF.

(2)	In 2002, the claimant brought another set of employment tribunal proceedings against MSF.

(3)	In 2004, the claimant brought proceedings in the Fair Employment Tribunal against Amicus (MSF), alleging that the claimant had been subjected to political discrimination in relation to a 2003 MSF job recruitment process.

The cases

6.	These three cases are being heard together.  In this Decision, we refer to Case ref. no. 152/05FET as “Case 1”, to Case ref. no. 1064/05 as “Case 2” and to Case ref. no. 92/06FET as “Case 3”.

The conduct complained of

7.	In March 2005, the claimant represented a health service employee, Mr Noel Glenn, at an investigatory meeting which was part of a disciplinary process.

8.	The claimant’s role in representing Mr Glenn prompted a letter dated 22 April 2005, which Mr Williamson sent to the claimant.  In that letter, Mr Williamson:

(1)	told the claimant that he was not authorised by Amicus to represent Amicus members in disciplinary/grievance matters;

(2)	told the claimant that he was not entitled to be Branch Secretary of Belfast Shorts Branch; and

(3)	challenged his entitlement to be a member of Belfast Shorts Branch.

9.	In Cases 1 and 2, the writing of that letter, and the union’s alleged failure to respond to the claimant’s professed concerns (in relation to the writing of that letter) are, in essence, the conduct complained of.  

10.	The conduct complained of in Case 3 is as follows.  According to the claimant, by May 2006, Belfast Shorts Branch had been “excluded from participation in the democracy of Amicus” in that:

(1)	The Branch had not been included in the following:

(a)	A Branch Officer’s training course;

(b)	a May Day March and rally;

(c)	a Regional Women’s conference;

(d)	a Retired Members Forum; and

(e)	an Irish Executive Conference.

(2)	Mr Williamson refused to endorse Belfast Shorts Branch delegates to the Belfast and District Trades Council.

(3)	Belfast Shorts Branch was excluded from “any consideration as delegates to the NIC-ICTU”.

11.	The parties are agreed that, by bringing the Fair Employment Tribunal proceedings against Amicus in respect of the 2003 MSF job application, the claimant carried out a “protected act”: an act which falls within the list of acts listed at Article 3(5)(a) of the Fair Employment and Treatment (Northern Ireland) Order 1998.  (That Order is referred to below simply as “FETO”).  The bringing of the job application FET proceedings is the only protected act cited by the claimant in the context of his victimisation discrimination claims on these proceedings.

Some key legislative provisions

12.	Article 23 of FETO makes it unlawful for a vocational organisation (including a trade union) to discriminate against a person who is a member of that organisation in various specified respects or to discriminate against that person by: “… subjecting him to any other detriment”.

13.	Article 33A of FETO is in the following terms:

“(2)	Where a relevant relationship has come to an end it is unlawful for the relevant party – 

(a)	to discriminate against another party by subjecting him to a detriment, …

(b)	      ...

where the discrimination … arises out of and is closely connected to that relationship”.

	It is clear that, in the context of Article 33A, “a relevant relationship” includes the relationship between an employer and an employee.

14.	For the purposes of FETO, the term “discrimination” includes political discrimination and victimisation discrimination.

15.	Article 3 of FETO defines political discrimination as meaning discrimination on the ground of political opinion.  Article 3(2) makes it clear that a person discriminates against another on the ground of political opinion in any relevant circumstances if, on the ground of political opinion, he treats that other less favourably than he treats or would treat other persons.

16.	Victimisation discrimination is defined for the purposes of FETO at Article 3(4), which provides that an alleged “perpetrator” does discriminate by way of victimisation against a claimant, in any circumstances relevant for the purposes of FETO, if he treats the claimant less favourably that he treats or would treat other persons in those circumstances and does so for a reason mentioned in Article 3(5) of the Order.

17.	The reasons mentioned at Article 3(5) are as follows:

(1)	The claimant has done a protected act (one of the acts listed at sub-paragraph (a) of paragraph (5) of Article 3 of FETO); or

(2)	the “perpetrator” knows that the claimant intends to do any of those acts, or suspects that the claimant has done, or intends to do, any of those acts.

18.	Accordingly, it can be seen that the definition of political discrimination and the definition of victimisation discrimination both contemplate a process of comparison (whereby the treatment accorded to the claimant and the treatment accorded to an appropriate statutory comparator will be compared).  In the context of political discrimination, Article 3(3) makes explicit provision for that comparison process, in the following terms:

“(3)	A comparison of the cases of persons of different … political opinion … must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

No equivalent of that paragraph has been enacted in connection with FETO’s definition of victimisation discrimination.

19.	Article 31 of the Trade Union and Labour Relations (Northern Ireland) Order 1985 (“TULRO”) provides that an individual who is a member of a trade union has the right not to be “unjustifiably disciplined” by the union.

20.	The term “unjustifiably disciplined” is assigned a special meaning for the purposes of TULRO.  

21.	First, for the purpose of that Order, an individual is “disciplined” by a trade union if a determination is made, or purportedly made, under the rules of the union, or by an official of the union that:

“(a)	he should be expelled from the union or a branch or section of the union, 
…
(f)	[or] he should be subjected to some other detriment”.

Secondly, if an individual is “disciplined” within the meaning of Article 31, he will be regarded as being “unjustifiably” disciplined, if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is conduct to which Article 32(2) of TULRO applies, or is something which is believed by the union to amount to such conduct.

22.	The Article 32(2) list includes the following:
“	…

(c)	asserting (whether by bringing proceedings or otherwise) that the union, [or] any official or representative of it … has contravened … a requirement which is, or is thought to be, imposed by or under the rules of the union, or any other agreement or by or under any statutory provision or any rule of law;

(d)	encouraging or assisting a person -

(i)	to perform an obligation imposed on him by a contract of employment …

…”

The claims

23.	In Case 1:

(1)	The claimant claims that, by reason of the conduct complained of in that case, the respondents unlawfully discriminated against him, by way of political discrimination, by subjecting him to a relevant “detriment” contrary to Article 23 and/or Article 33A of FETO.

(2)	The claimant also complains that the respondents have unlawfully discriminated against him, by way of victimisation discrimination (in retaliation for the MSF job application proceedings), by subjecting him to a “detriment” contrary to Article 23 and/or Article 33A of FETO.

24.	In Case 2, the claimant claims that, by reason of the conduct complained of in Case 2, he has been unjustifiably disciplined by the respondents.  (See paragraph 9 above).

25.	The claimant says that the conduct complained of amounted to himself being “disciplined” by the respondents because the conduct complained of amounted to the claimant being expelled from the union or a branch or section of the union and it also amounted to him being subjected to a “detriment” within the meaning of Article 31 of TULRO.

26.	The claimant says that the respondent’s conduct amounted to disciplining him for one, or both, of the following reasons:

(1)	the claimant had asserted (by the bringing of the job application Fair Employment Tribunal proceedings) that the union and/or any official of the union had contravened a requirement under any statutory provision (the relevant requirement being the requirement to desist from unlawful “discrimination”,  within the meaning of the FETO); and

(2)	 by representing Neil Glenn in the relevant proceedings (see paragraph 7 above), the claimant was encouraging or assisting Mr Glenn to perform an obligation imposed on Mr Glenn by his contract of employment (that obligation being an obligation imposed on employees to effectively participate in any disciplinary investigation process).

27.	In Case 3:

(1)	The claimant claims that, by reason of the conduct complained of in that case, the respondents unlawfully discriminated against him, by way of political discrimination, by subjecting him to a relevant “detriment” contrary to Article 23 and/or Article 33A of FETO.

(2)	The claimant also complains that the respondents have unlawfully discriminated against him, by way of victimisation discrimination (in retaliation for the MSF job application proceedings), by subjecting him to a “detriment” contrary to Article 23 and/or Article 33A of FETO.

The sources of evidence and the arguments

28.	On the claimant’s side of the case, we received oral testimony from the following:

(1)	the claimant himself; and

(2)	Ms Barbara Martin (who, in 2005 was an Amicus workplace representative on the Royal Group of Hospitals site in Belfast).

29.	Mr Murdo Murray (an Amicus member who had been accused, during the course of a grievance process brought by a third party, of wrongdoing, and who had been represented by the claimant in the course of that grievance process) signed a witness statement in these proceedings.  However, his oral testimony was unnecessary, because the respondent accepted the accuracy of all the assertions which were set out in that witness statement.

30.	On the respondent’s side of the case we received oral testimony from the following:

(1)	Mr Williamson;

(2)	Mr Doug Collins (who was an Assistant General Secretary of Amicus in 2005).

31.	We also saw:

(1)	a large bundle of documents, consisting of over 250 pages; and

(2)	various miscellaneous documents which were provided to us by the parties during the course of the hearing.

32.	We told the parties that we would only have regard to any document within the bundle if our attention was specifically drawn to that particular document. 

33.	We drew the attention of the parties to the decision of the Fair Employment Tribunal in Moore v Food Safety Promotion Board (Case ref: 29/04FET).  We also drew the attention of the parties to the decision of an industrial tribunal in A v XY Ltd (Case ref: 557/05).  Moore was principally concerned with the substantive law in respect of unlawful political discrimination and the associated rules regarding the burden of proof.  A v XY Ltd was principally concerned with the substantive law of victimisation discrimination (in the context of the Sex Discrimination Order) and with the associated rules regarding the burden of proof.  The parties were agreed that the statements as to the legal principles, as set out in those two cases, were correct.  The parties also agreed that those principles were also applicable in the circumstances of this case.

34.	Both Mr Bowers and Mr Daly provided us with written submissions on the liability issues, for which we are grateful.  Those written submissions provide a permanent record in respect of the main liability arguments of each party.  Specific reference has been made to some of those arguments below.  In the circumstances, it is unnecessary, in this Decision, to provide comprehensive details of all of those arguments.

The facts

35.	We have made the following findings of fact which are relevant to the liability issues which we have determined:

(1)	The claimant has been a trade unionist for several decades.  As already noted above, he was a full-time official of the trade union MSF until the early years of this decade.

(2)	The claimant has been a strong supporter of the Communist Party of Ireland for a long time.  His staunch support for that organisation has at all material times been widely known.

(3)	The claimant and Mr Williamson worked together, in their respective roles, in the Confederation of Ship Builders and Engineering Unions (“the CSEU”), for many years.  In general, they worked constructively together.  There were few incidents in which there was controversy between them.

(4)	In the context of the claimant’s discrimination claims in these proceedings, it is very much in the claimant’s interest to highlight any controversial incidents involving himself and Mr Williamson.  He has highlighted several such instances in the course of his supplementary witness statement. No unwarranted mistreatment of the claimant was carried out by Mr Williamson in the course of any of those incidents.  We have made specific findings of fact in relation to several of those instances in which the claimant’s account of events includes an allegation of mistreatment of himself by Mr Williamson.

(5)	However, before doing so, we should make it clear that we understand that committed trade unionists are going to disagree, on matters of strategy and tactics, from time to time.  Such disagreements, in themselves, do not constitute any indicator of bad faith, bias, malice or discriminatory motive.

(6)	There was controversy involving a bell, at a CSEU meeting at which the General Secretary of the CSEU was present.  The claimant at that time was the President of the Belfast Branch of the CSEU.  The meeting was taking place in Belfast.  The claimant thought that it was appropriate that he personally should chair the meeting.  The General Secretary thought it appropriate that he, as the senior CSEU member present, should chair it.  The claimant banged on a bell to call the meeting to order.  In doing so, he was emphasising his moral entitlement to be the chairman of the meeting.  The bell was going “ding-ding-ding”.  Mr Williamson, without the consent of the claimant, and in a rough manner, took the bell away from the claimant.

(7)	We consider that this treatment, on the part of Mr Williamson, was understandable and not unwarranted.  There was an embarrassing situation, in which the claimant and the union’s General Secretary were, metaphorically at least, vying for control.  The bell was being used as a weapon in that battle.  Mr Williamson, who sided with the General Secretary in that dispute, removed the bell, thus depriving the claimant of that “weapon”.  On that occasion, the claimant and Mr Williamson found themselves on the opposite sides of the argument.  The claimant’s actions in the course of that incident and Mr Williamson’s actions in the course of that incident do not necessarily reflect poorly on either man.  Their actions were part of the normal cut and thrust of intra-union debates.

(8)	The claimant’s Community background is Roman Catholic (“Catholic”).  However, in reality, the claimant regarded himself as being loyal to the working class as a whole and not to any Community within that class.  His position on those matters has long been well-known within trade union circles in Northern Ireland.

(9)	In the mid-1990s, the claimant was the President, and Mr Williamson was the Secretary, of the CSEU in Belfast.  At that time, the claimant had been heavily involved in approaches to the Northern Ireland elected representatives, for the purposes of enlisting their support for the survival of the Belfast Shipyard.  As part of that effort, meetings were arranged with Sinn Fein.  

(10)	In January 1995, Mr Williamson, in his capacity as District Secretary of the CSEU, received a letter of complaint which was in the following terms:

		“On Monday 23 January 1995, three members of Harland and Wolff Ltd, Senior Shop Stewards Committee … met with Mr D Irvine of the PUP.  The purpose of the meeting being to ascertain why a delegation calling itself “Concerned Loyalist Trade Union Members” met with the PUP some time previously to voice concern at “Shipyard Shop Stewards meeting Republicans”.

	Mr Irvine confirmed that the group was led by Mr [X] …, the others being Mr [Y], Mr [Z] and Mr [A] …  Mr Irvine also confirmed that the only subject discussed was H & W Shipyard and more importantly they alleged that a Steering Committee … was meeting Republicans with a view to disadvantaging Protestants.  It should be pointed out that it has been reported, at all TU Group levels within H & W, the purpose and progress of the political lobbying which the Steering Group has been involved in.  We therefore write to you to ask these individuals, the purpose of their concern of Shipyard activities.  More importantly, the emotive comments about meeting Republicans is at least malicious and at worst dangerous in the neighbourhoods in which we live and work.  The SSC in H & W expect to receive, in writing, explanations from the named individuals before we make further observations”.

(11)	We have anonymised the names of those individuals whose conduct was criticised in the 31 January letter.

(12)	In essence, the letter-writer was alleging that Mr David Irvine had alleged that a delegation led by X (and consisting of X, Y, Z and A) had suggested that the meetings with Sinn Fein (to which reference has already been made), were meetings which were taking place “with a view to disadvantaging Protestants”.

(13)	In the context of East Belfast, in a period not long after the Ceasefires, these were highly sensitive allegations.

(14)	It is also worth noting that the letter-writer was not explicitly asking Mr Williamson to put the matter before any organ of governance within the CSEU.  Instead, the letter was explicitly asking him to ask the relevant individuals (X, Y, Z and A) to provide a written explanation for the behaviour of those individuals.  

(15)	Mr Williamson wrote to X, asking for X’s “personal comments on the contents of [the 31 January 1005] letter before any action is taken”.  He wrote to X on 8 February.  On 16 February, the writer of the 31 January letter wrote to Mr Williamson again.  In the letter of 16 February, the letter-writer in effect repudiated the key points which he had himself made in the letter of 31 January.

(16)	We must make it clear that we arrive at no view as to the accuracy or inaccuracy of the allegations which were made in relation to X, Y, Z and A in the 31 January letter.  We do not need to arrive at a conclusion on that issue for the purpose of determining the issues which we do have to decide in this case.

(17)	The claimant did not bring the letter to the attention of the claimant, even though the claimant was the President of the local CSEU District at that time.  According to the claimant, that shows evidence of political bias on the part of Mr Williamson.  

(18)	We disagree.  First, we note that the letter did not ask for the matter to be brought to the attention of any committee within the CSEU.  Instead, the letter-writer was asking that the views of X, Y, Z and A be sought.  Secondly, the letter of 31 January touched upon very sensitive issues.  Against that background, we consider that Mr Williamson’s explanation for his conduct on that occasion is entirely plausible.  He told us that he raised the matter with X discreetly, because X was more senior than Y, Z or A.  The matters complained of in the letter of 31 January 1995 had in effect disappeared by 16 February 1995.

(19)	We think that Mr Williamson acted appropriately in raising the matter only with X.  We can quite understand that Mr Williamson would not wish the matter to become an issue of general notoriety within CSEU.  In our view, Mr Williamson’s actions in relation to the 31 January 1995 letter were appropriate and understandable, and they do not indicate any political bias.

(20)	Mr Williamson is a supporter of the British Labour Party.  He only recently joined that party.  However, for a long time he has sympathised with its aims and objectives.  He is no more anti-Communist than the average Labour Party member.  

(21)	We are satisfied that Mr Williamson is not strongly supportive of unionists’ aims or objectives in Ulster and is not strongly antagonistic to nationalists’ aims or objectives in Ireland.  

(22)	As already noted above, the claimant’s employment as a full-time official in MSF came to an end in acrimonious circumstances.  Subsequently, the claimant was an applicant for a post in MSF.  He was an unsuccessful applicant.  In 2004, he made a Fair Employment Tribunal claim in respect of the relevant recruitment process.  That claim is the protected act, for the purposes of the victimisation discrimination claims in this case.  

(23)	Mr Williamson was invited to participate in the interview process, as part of the interview panel, in respect of the relevant vacancy.  According to the invitation, he would not be a voting member of the panel.  He declined the invitation.  In the course of declining that invitation, he told a Mr Jeary (of MSF) of his view that this claimant was likely to take employment tribunal proceedings if he (this claimant) was not the successful job applicant in respect of the relevant post.  So, even in 2003, the claimant’s propensity to litigate, and the likelihood of him litigating in relation to the MSF recruitment process, was very much in Mr Williamson’s mind.

(24)	In the course of his testimony in these proceedings, Mr Williamson made it clear that he strongly disapproves of union members taking action in employment tribunals against their union.  That is not an ignoble point of view.  Furthermore, we have reminded ourselves that having a motive to discriminate is not the same thing as discriminating.  Nevertheless, we consider Mr Williamson’s honestly admitted disapproval to be of significance in this case.

(25)	In March 2005, the claimant regarded himself as a member of the Shorts Branch of Amicus and as the Secretary of that Branch.  

(26)	At that time, the claimant was asked to represent an Amicus union member, Mr Noel Glenn, at an investigatory meeting which was being held pursuant to Mr Glenn’s employer’s disciplinary procedure.  

(27)	At the relevant time, Mr Glenn was employed within the Health Service, by the Sperrins Lakeland Health and Social Care Trust.

(28)	Some years earlier, the claimant had represented Mr Glenn in relation to another employment matter.  Ms Barbara Martin, an Amicus workplace representative at a work location within the Health Service, had initially intended to represent Mr Glenn at the relevant investigatory meeting.  However, she found that, because of other priorities, she was unable to attend.  She asked the claimant to attend in her place.  He agreed to do so.   Ms Martin was not, at the relevant time, a full-time official of Amicus.

(29)	Representation of union members in the course of disciplinary procedure meetings is not a glamorous or enjoyable task.  It is an onerous task.  Those who carry out that task usually carry out a valuable function.

(30)	The claimant did represent Mr Glenn at the relevant meeting, which took place on 14 March 2005.  In response to an enquiry from a representative of Management at that meeting, the claimant made it clear that he regarded himself as being authorised, within the terms of the internal governance arrangements of Amicus, to be the representative of Mr Glenn at that meeting, as an official Amicus representative.

(31)	Subsequently, the situation was drawn to the attention of Mr Williamson.  He wrote to the claimant on 22 April 2005.  

(32)	In that letter, he told the claimant three main things.  First, the claimant was not authorised by Amicus to represent any member of Amicus.  Secondly, he was not the Branch Secretary of Shorts Branch.  Thirdly, he was not entitled to be a member of Belfast Shorts Branch. 

(33)	The tone of the letter was strident, hostile and insulting.  It includes phrases such as:

“In the event that you are labouring under the mistaken belief that … “, and

“… informing him for the avoidance of any doubt that you are not authorised …” 

and

 “… the Union will not be held responsible for your inappropriate misrepresentation”.  

(34)	Before that letter was sent out, Mr Williamson sent a copy of it to Mr Derek Simpson, who was the General Secretary of Amicus at that time.  Mr Simpson did not request or require Mr Williamson to desist from sending that letter.  Neither did he endorse the points made in that letter.

(35)	That letter, as sent to the claimant, was in substance the same as an earlier draft of that letter which had been shown to Ms G Hirsch, the Amicus Legal Officer.  The only difference between the letter which actually went out and the earlier draft was as follows.

(36)	In the draft which Ms Hirsch was shown, the fifth paragraph was in the following terms:

“I have since written to Mr Gillen informing him for the avoidance of any doubt that you are not authorised by this union to represent any member of Amicus in disciplinary or grievance issues.”

(37)	As a result of advice from Ms Hirsch, the letter, when it went out, included the following additional sentence, at the end of the fifth paragraph:

“Representation of such members should be by accredited stewards within the workplace, or by union officers.  You are neither of these”.

(38)	Ms Hirsch did not give evidence before this tribunal.  We reject Mr Daly’s suggestion that there is credible evidence that Ms Hirsch endorsed Mr Williamson’s point of view, as expressed in his letter of 22 April 2005, in relation to representation, secretaryship or membership.

(39)	In our view, it is notorious that legal advisors (both in-house and out-of-house) often advise on the wording of letters in circumstances in which they do not necessarily agree with the appropriateness of the decisions which are being communicated in the course of the relevant draft letters.  A legal advisor does not necessarily endorse a particular course of action merely by advising on the wording of the draft letter which will announce that course of action.

(40)	While acting in the role of representative in this case, Mr Daly told us that he had personally advised Amicus that Mr Williamson’s interpretation of the rules regarding secretaryship (as set out in the April 2005 letter) was the correct interpretation.  That assertion is inadmissible as evidence.  However, if we are wrong on the admissibility question, we give that evidence no significant weight for the following reasons.  First, Mr Daly’s assertion was obviously not tested through any process of cross-examination.  Secondly, Mr Daly told us that the relevant advice had been given at a time when the parties to these proceedings were already in dispute about the appropriateness about the main points of the April 2005 letter.  Thirdly, we do not know the circumstances in which the relevant advice was given, or the information which was then available, or then unavailable, to Mr Daly.

(41)	It is convenient to look first at the contention (in the April 2005 letter) that the claimant was not entitled to be the Secretary of Shorts Branch.  

(42)	The parties are agreed that the relevant rule is to be found at Rule 6 of the Amicus “Rule Book” 2004 edition (“the 2004 rules”).

(43)	Sub-paragraph (1) of Rule 6 makes it clear that, for the purposes of those rules, “lay office” means any position to which a member may be elected pursuant to the 2004 rules, other than a position which entails employment by the Union.  It is agreed between the parties that a Branch secretaryship does not entail employment by the union and that it therefore is a “lay office”.

(44)	For the respondent, it was contended that Mr Williamson’s assertion (in the April 2005 letter) in relation to the Branch secretaryship was based on Mr Williamson’s interpretation of Rule 6(6), which is in the following terms:

			“(6)	A member who:

				(a) 	…
				
	(b) 	who is or has ever been a full-time officer of the Union or any of its predecessors;  …

	(c)	… 
	
	shall only be eligible to hold lay office in a branch, as a branch delegate to a Constituency Labour Party or as a workplace, safety or learning representative except that a former employee of the Union (or any of its predecessors) may hold such other lay office within the Union’s political structure as the National Executive Council may agree in respect of that member.”

(45)	Rule 6(6) is of course long-winded and convoluted.  However, we consider its meaning to be clear.  

(46)	In our view, the meaning of Rule 6(6) is that, as a general rule, a former MSF full-time officer (like the claimant) was, as a general rule,  only eligible to hold lay office:

(1)	in a Branch;

(2)	as a Branch delegate to a Constituency Labour Party; or

(3)	as a workplace, safety or learning representative.

(47)	Furthermore, in our view, it is clear that the paragraph (6) general rule was subject to an exception.  That exception, in its application to a former full-time officer of MSF, was that the relevant person could also hold lay office within the Union’s political structure if the National Executive agreed to the relevant person holding that other lay office within that structure.

(48)	The respondents assert that Mr Williamson honestly construed paragraph (6) as meaning that, according to that paragraph’s general rule, the claimant was only eligible, at Branch level, to hold lay office as a Branch’s delegate to a Constituency Labour Party, or as a workplace, safety or learning representative.

(49)	In our view, the alleged Williamson interpretation is a strained interpretation of paragraph (6).

(50)	Furthermore, as the claimant pointed out in a letter dated 27 April 2005, the comma between “… to hold the office in a branch …” and “…as a branch delegate to a Constituency Labour Party …” is significant.  However, the “comma” point was never addressed by Mr Williamson, or by his advisors or by his agents, in the subsequent correspondence.

(51)	Even if one were to accept (which we do not) that the purported Williamson interpretation is a viable interpretation, there was, at the very least, an arguable proposition for the contrary interpretation.  And Mr Williamson, and other relevant officers within Amicus, were well aware that the 2004 rules provided a mechanism for the authoritative resolution of any disputes about the interpretation of the rules. (See the next sub-paragraph). That mechanism was not used in a timely fashion in relation to this controversy. 

(52)	According to Rule 25(1)(g) of the 2004 rules, one of the functions of the National Executive Council of Amicus (“the NEC”) was to:

			“(g)	Decide any question relating to the meaning and the 					interpretation of these rules… which decision shall be 					binding upon all members of the Union”.

(53)	In relation to the Branch secretaryship issue, the course of the correspondence between the parties (between the claimant on the one hand and the respondents and their advisors and representatives on the other hand) can be summarised as follows.  

(54)	The claimant wrote to Mr Williamson on 27 April 2005, making the “comma” observation which has been mentioned above.  (See sub-paragraph (50) above).  That same letter made it clear that the claimant was contemplating Fair Employment Tribunal proceedings in respect of the 22 April letter.  It was only in July 2006 that Ms Hirsch (the Director of Legal Services of Amicus), who has already been mentioned above, told the claimant that the question of whether the claimant was entitled to be a Branch Secretary was being referred to the NEC for determination.

(55)	On 14 August 2006, Ms Hirsch wrote to the claimant, outlining the reasoning which was being put forward as the basis for the Williamson interpretation of Rule 6(6) in relation to secretaryship.  According to Ms Hirsch, the Williamson interpretation was based on the following:

	“Rule 6: Having regard to the fact that you were employed as a full-time official by MSF, you are prohibited from holding the lay position of Branch Secretary.  See in particular Rule 6(1) and 6(6).  This clearly prohibits someone in your position from holding lay office, except for the position of Branch delegate to a CLP, or as a workplace, safety or learning representative and lay office within the political structures with the permission of the NEC”.

(56)	In September 2006, the NEC decided that Rule 6 did not in fact impose any prohibition on a former full-time official in respect of the holding of any lay office position whatsoever within a Branch.

(57)	It is convenient next to turn to the April 2005 letter’s contentions in respect of the claimant’s entitlement to be a member of Belfast Shorts Branch.

(58)	According to the April 2005 letter, the claimant’s membership of Belfast Shorts Branch was inappropriate because he should have been allocated to a Branch for the area where he was residing.

(59)	According to the relevant part of that letter:

		“I would also question your membership of Belfast Shorts Branch itself, again in line with Rule 19, Branches, clause (1) would indicate, on your retirement as an MSF section official, you would have been allocated to a Branch, for the area where you reside this would be based on the fact that you have never been employed by Shorts.”

(60)	In these proceedings, the claimant has not asserted that he was ever employed by Shorts.

(61)	Rule 19(1) of the 2004 Rules provides as follows:

“(1)	Every member of the Union shall be a member of an 				occupational, company, workplace or geographic Branch.  If a 		new member is employed in an occupation, by a company or at 		a workplace for which there is a designated Branch, the 			members shall be allocated to that Branch.  In all other cases, 		a new member shall be allocated to a Branch for the area 			where that member resides.

(62)	We note that the claimant lives in the Newtownabbey area.  There must be an issue as to whether Newtownabbey is within the geographic scope of Shorts Branch.

(63)	However, the claimant was not a “new member”.  Therefore, the last sentence of Rule 19(1) was inapplicable in the particular circumstances of the claimant.

(64)	On behalf of the respondents, it was suggested that, in the April 2005 letter, Mr Williamson had merely “questioned” the claimant’s entitlement to be a member of Shorts Branch (as distinct from purporting to decide that the claimant was not entitled to be a member of that Branch).

(65)	However, although the words “I would also question”, are included, in that context, in that letter, that phrase has to be read alongside the final paragraph of the letter, which is in the following terms:

		“The membership administration will contact you in due course 	notifying you of your reallocated branch”.

	Accordingly, in effect, Mr Williamson was telling the claimant that he would be compulsorily reallocated to a new Branch.

(66)	The claimant challenged the Williamson interpretation in respect of Branch membership entitlement, in a letter dated 27 April 2005.  However, the matter was not referred to the NEC for interpretation until summer of 2006.

(67)	In a letter dated 14 August 2006, Ms Hirsch told the claimant of the basis for the alleged Williamson interpretation in connection with the claimant’s membership of Shorts Branch:

	“Rule 19: This rule prohibits you from being a member of the Shorts Branch as it is clearly intended that for designated workplace branches only employees of that company can be members”.

(68)	On the basis of the evidence available, we are satisfied that, at the relevant time, Shorts was a “geographic” Branch.

(69)	In the Hirsch correspondence, the claimant had been promised that the NEC would be asked to rule on the question of whether or not the claimant was entitled, pursuant to Rule 19, to be a member of Shorts Branch.  However, that was not done.  According to a letter dated 21 September 2006, from Mr Simpson (the Amicus General Secretary):

	“Prior to the NEC [meeting] the [General Purposes and Finance Committee] provisionally considered Rule 19, which relates to the issue of which branch members should belong to.  It transpires that a number of anomalous practices exist in this area and the GPFC felt that no action should be taken in relation to this Rule until they had reviewed and considered the matter further.  For the avoidance of doubt you will be permitted to remain a member of the Shorts branch [in the meantime]”.

(70)	Accordingly, in summary, what happened in relation to the Shorts branch membership issue was as follows.  First, in his letter of 22 April 2005, Mr Williamson told the claimant that he was not entitled to be a member of Shorts Branch.  Secondly, the claimant immediately re-asserted his entitlement to membership of Shorts Branch.  Thirdly, in the summer of 2006, Amicus Officers belatedly offered to obtain an authoritative interpretation from the NEC.  Fourthly, that was never done.  Fifthly, instead, a different committee of Amicus decided that there ought not to be an authoritative interpretation, pending a review of existing practices.  Lastly, the issue has never subsequently been the subject of an interpretation by the NEC.

(71)	It is now appropriate to turn to the third key point in the April 2005 letter, which was Mr Williamson’s contention that the claimant had not been authorised, under the internal governance arrangements of Amicus, to represent Mr Glenn at the relevant disciplinary investigatory hearing.

(72)	According to the draft of the 22 April letter which was presented to Ms Hirsch for comment, the claimant was wrong to represent Mr Glenn and:

	“I have since written to Mr Gillan informing him for the avoidance of any doubt that you are not authorised by this Union to represent any member of Amicus in disciplinary or grievance issues”.

(73)	Why was the claimant not authorised in that regard?  The draft which was sent to Ms Hirsch gave no clue as to the reason.  However, the letter which went out on 22 April 2005 did provide a reason.  The relevant paragraph had been altered, in line with advice from Ms Hirsch so that it read as follows:

		“I have since written to Mr Gillan informing him for the avoidance of any doubt that you are not authorised by this Union to represent any member of Amicus in disciplinary or grievance issues.  Representation of such members should be by accredited stewards within the workplace, or by union officers.  You are neither of these. [Emphasis added]”.

(74)	Now, clearly, the claimant was not an accredited steward within Mr Glenn’s workplace.  However, since September 2006, Amicus has admitted that the claimant was, at the relevant time, a union officer.  So the April 2005 letter’s explanation, in respect of the claimant’s alleged non-entitlement to represent Mr Glenn, is wrong on the face of it, unless one interprets “union officers” as “full-time union officers”.  In our view, if Mr Williamson had meant to refer to full-time union officers, he would have explicitly done so.

(75)	The question of who was authorised, under Amicus internal governance arrangements (to represent members), at the material time, was never referred to any Amicus committee.  Instead, on 21 September 2006, Mr Simpson, the General Secretary of the Union, endorsed a modified (and indeed, stricter) version of the Williamson statement of April 2005, as regards entitlement to represent Amicus members.  He did so by writing to the claimant  in the following terms:

	“However I would like to take this opportunity to remind you that the only people entitled to represent Amicus members in the workplace are Amicus full-time Officers or the Amicus elected representatives at their workplace.”

(76)	According to the Williamson pronouncement (of April 2005), two categories of persons could represent an Amicus member.  The first category consisted of accredited workplace representatives within the relevant member’s workplace.  The second category consisted of all of the officers throughout Amicus, including lay officers.  The Simpson pronouncement (of September 2006) was stricter.  According to the latter pronouncement, a particular member could only be represented by an accredited workplace representative based within that member’s workplace, or by a full-time officer of the Union.  

(77)	However, the Simpson pronouncement was not in line with what was actually happening (without any objection from anybody in authority) in practice.  In a letter dated 30 January 2007, the claimant brought one instance to the attention of Mr Simpson, in the following terms:

	“This [September 2006 pronouncement] also contradicts my experience over many years and my understanding of union policy.  The practice of experienced lay members representing members in various workplaces, has existed not only in the Ireland region, but also continues.  For example, I am informed that the Branch Secretary of Clerkenwell/St Pancras Branch, represented a member who was an employee of Charteris in April/May 2006 and a member who was an employee of Eurostar in September 2006, with the full knowledge of the union.  The Branch secretary concerned was not a workplace representative in either Charteris or Eurostar or a full-time officer of Amicus”. 

(78)	We find the claimant’s assertions in relation to the Clerkenwell/St Pancras Branch Secretary to be in substance true. 

(79)	In the same letter to Mr Simpson, the claimant posed the following questions for Mr Simpson:

	“(1)	When did the Union first take the decision “that the only people entitled to represent Amicus members in the workplace are Amicus full-time Officers are the Amicus elected representatives at their workplace”?

	(2)	By whom or by which Union body was this decision taken?  i.e. by Conference, by the National Executive Committee or other authoritative body within the Union?

	(3)	To whom was this decision communicated?

	…”.

(80)	In response, by letter dated 1 February 2007, Mr Simpson commented as follows:

		“I have not checked our minutes of the GPFC or any NEC for the authorities you require as it is not necessary or relevant.  The question of who represents members is an operational issue in relation to which no specific decision by the NEC is required”.  

(81)	No explicit statement of policy or practice, in respect of the representation of Union members, was ever authoritatively issued by Amicus until Mr Williamson wrote the letter of April 2005.

(82)	Nobody asked Conference, or the NEC, or any other committee within the union, at any material time, to arrive at a determination on the question of who was entitled, and who was not entitled, to represent Amicus members.

(83)	Prior to the controversy in relation to the representation of Mr Glenn, there was no written document setting out any rule, policy, or practice in respect of authorised categories of representative.  

(84)	By the time of this hearing, the Amicus position on the categories of authorised representative, having been modified by the Simpson pronouncement (as compared with the Williamson pronouncement) had again altered.  By the time of this hearing, the respondents were prepared to accept that there were three categories of authorised representatives.    They consisted of the following:

		“(1)	accredited workplace representatives, within that workplace,

	(2)	full-time officers of the union, and

		(3)	any other union member who has been authorised in that 			connection by a full-time officer.

(85)	That third category of authorised representative was added because of the claimant’s information (as set out in the letter of 30 January 2007) that the Branch Secretary of Clerkenwell/St Pancras Branch had represented employees who were not within his workplace, even though he was not, at that time, a full-time officer of Amicus.

(86)	In his many years of experience within Amicus and the AEEU, Mr Collins had never encountered any previous situation in which there had been a controversy as to whether a particular member was authorised to represent union members.

(87)	The practices in respect of representation were different in the old AEEU from those which had been commonplace in MSF.  When Amicus was formed, MSF constituted not far from 50% of the combined membership of the new union; so MSF was far from being the junior partner in the merger.  Nevertheless, during the period up to April 2005, there was no written communication within Amicus which suggested that there had been a radical change, following the formation of Amicus, in the custom and practice which had formerly been a feature of life in MSF, regarding the representation of members.

(88)	We are satisfied that, in April 2005, there was no Amicus rule, policy, norm or practice which made it improper, under Amicus internal governance arrangements, for the claimant to represent Mr Glenn.

(89)	So, the three main contentions of the April 2005 letter were incorrect.  First, the claimant was entitled to be a Secretary of a Branch (as the NEC subsequently authoritatively confirmed in September 2006).  Secondly, Rule 19 did not present any impediment, in the particular circumstances of this case, to the claimant being a member of the Shorts Branch.  Thirdly, in March 2005, the claimant was entitled, under the internal governance arrangements of Amicus, to act as an authorised Amicus representative of Mr Glenn, even though Mr Glenn was not within the claimant’s workplace.

(90)	The claimant issued two statutory questionnaires.  The first was issued in connection with Cases 1 and 2.  The second was issued in connection with Case 3.  The first of those questionnaires was not answered in a timely fashion.  There were aspects of the answers to both of those questionnaires which were evasive.  However, we do not consider that those factors (the delay and the evasiveness) provide significant evidence in favour of the claimant’s arguments that the respondents have been guilty of discrimination in this case.  We think they do not provide significant evidence because we are satisfied that the delays and evasiveness were the result of legal “gamesmanship” (which, of course, we deplore).

(91)	For ease of reference, and in the interests of readability, we have set out some additional findings of fact below (alongside our conclusions).

The legal principles (Liability for discrimination)

36.	Article 33A was inserted into FETO for the purpose of making sure that a claimant would be able to claim compensation in respect of post-employment unlawful discrimination perpetrated by an employer against the claimant in his capacity as an ex-employee of that employer.  That is why Article 33A only protects an ex-employee claimant if the relevant act of bias “… arises out of and is closely connected to …” the former employment relationship.

37.	Accordingly, Article 33A does not protect the former employee of a trade union if the act complained of is perpetrated within the context of the claimant’s membership relationship with the trade union (as distinct from being perpetrated against him in his capacity as a former employee).

38.	As Mr Daly realistically recognised, support for the Communist Party of Ireland and support for Irish republicanism are political opinions within the meaning of FETO.

39.	Unite accepted that it had secondary liability in respect of any acts of unlawful discrimination perpetrated by any employee of Amicus.  So the defence of reasonable practicability (whereby an employer can, in some circumstances, escape secondary liability for a victim’s colleague’s act of discrimination) is not being invoked in the circumstances of this case.  In our view, Unite’s attitude in respect of that matter was both realistic and appropriate.

40.	In the context of each of the two types of discrimination complained of in this case (political discrimination and victimisation discrimination), two elements of the definition of discrimination have to be satisfied.  First, there must have been less favourable treatment of the claimant (in comparison with the treatment accorded to an appropriate statutory comparator).  Secondly, although a prohibited ground (the ground of political opinion, or by reason of the claimant having carried out a protected act, as the case may be) does not need to be the main ground for that treatment, such a ground must be a substantial and effective cause; it must be an important, or significant, factor.  (See Igen Ltd v Wong [2005] IRLR 258, at paragraph 37 of the judgement).

41.	In the context of the political discrimination claim, the provisions of Article 3(3) of FETO have to be borne in mind.  Article 3(3) provides as follows:

“A comparison of the cases of persons of different … political opinion [in the context of a political discrimination claim] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.  

An actual comparator will not be a valid statutory comparator, in the context of a political discrimination claim, unless there are no important relevant differences between the circumstances of the claimant, at the time of the discrimination, on the one hand and the circumstances of the actual comparator, on the other hand.

42.	In Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065, the claimant was a police officer who had made an industrial tribunal claim of racial discrimination.  That claim had been brought against the Chief Constable.  While those proceedings were pending, the claimant applied for a job with another police force.  The Chief Constable refused to provide him with a reference.  The claimant brought proceedings for unlawful victimisation discrimination in respect of that refusal.

43.	The respondent argued that the correct comparison was with the treatment accorded to other persons who had issued proceedings against the Chief Constable under other statutes, rather than with the treatment accorded to those who had issued no proceedings at all.  That view was rejected by the House of Lords.  So Khan is clear authority for the proposition that the comparison to be made is simply between the treatment afforded to the claimant (who had done the protected act) and the treatment that had been, or would have been, afforded to other employees (who had not done a protected act); and that no other features need to be factored into the comparison.

44.	An alleged perpetrator discriminates by way of political discrimination against a claimant if he/she treats the claimant less favourably (than an appropriate statutory comparator) “on the ground of” the claimant’s political opinion.  However, an alleged perpetrator discriminates by way of victimisation against a claimant if he treats the claimant less favourably than he treats or would treat an appropriate statutory comparator and “… does so for a reason [specified in Article 3(5) of FETO] …”.

45.	Is there a distinction between “on the ground of” and “for a reason”?  Probably not.  In construing the analogous victimisation discrimination provisions of the Sex Discrimination Act 1975, the House of Lords held, in St Helens MBC v Derbyshire & Others [2007] IRLR 540, that the phrase “by reason that” (in the context of the definition of victimisation discrimination in the 1975 Act) means, in effect, “because”. (See paragraph 76 of the House of Lords decision).

46.	As Lord Nicholls pointed out in Khan, at paragraph 29 of the decision:

“Contrary to views sometimes stated, the third ingredient (by reason that) does not raise a question of causation as that expression is usually understood.  Causation is a slippery word, but normally it is used to describe a legal exercise.  From the many events leading up to the crucial happening, the Court selects one or more of them which the law regards as causative of the happening. … the phrase “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did?  What, consciously or unconsciously, was his reason?  Unlike causation, this is a subjective test.  Causation is a legal conclusion.  The reason why a person acted as he did is a question of fact”.

47.	Accordingly, it has to be borne in mind that, in considering whether victimisation discrimination has occurred, it is necessary to focus on the reason why, as distinct from focusing on questions of pure causation.  Nevertheless, against the factual background of this case, comments of Langstaff J in Blundell v Governing Body of St Andrew’s Roman Catholic Primary School [2007] IRLR 652 (at paragraph 33 of the judgement) are relevant.  They are relevant in the context of all of the discrimination claims in this case.  At paragraph 33 of Blundell, Langstaff J pointed out:

“… [This case] stands or falls by reference to well-established law in relation to direct discrimination.  That recognises that treatment complained of is not on the ground of sex if it is on some other ground, which is not gender specific.  Although the “but for” test is often helpful in identifying where the treatment is on the ground of sex, and in circumstances such as those in James v Eastleigh Borough Council … may be determinative, it is worth remembering that the focus of the enquiry is as to the reason for the treatment – the “reason why?” as it has been described in Shamoon (see paragraph 7 in the speech of Lord Nicholls of Birkenhead).  The “but for” test has limitations in resolving disputes as to causation upon which rights to compensation depend.  For example, the claim that “but for” my leaving home in the country to travel to London I would not have been knocked down by a car in Fleet Street may entitle the philosopher to muse that my doing so was the cause of my injuries, but such musing is completely unhelpful in determining the cause of the accident for the purposes of deciding whether I or the driver of the car should be financially responsible for the damage to man and to car involved in the accident.  Thus for these purposes a court adopts what has been termed a robust, or pragmatic, approach to causation.  Such an approach often leaves a broad margin within which a decision may fall.  Courts and tribunals alike are entitled to the respect of the appellate courts when they give an answer as to the reason why treatment has happened, unless the approach is obviously wrong or the answer clearly perverse”.

48.	In this case, the claimant has cited actual comparators in relation to the non-recognition of his alleged entitlement, under the internal governance arrangements of Amicus, to represent relevant union members.  However, he has also cited a hypothetical comparator in respect of that aspect of the case and he has solely cited hypothetical comparators in respect of all of the other acts complained of.  In cases (like the present case) in which a hypothetical comparator is cited, it is appropriate for a tribunal to construct a picture of how a hypothetical comparator would have been treated in comparable surrounding circumstances.  One permissible way of judging such a question is to see how unidentical but not wholly dissimilar cases had been treated in relation to other cases.  (See Shamoon v Chief Constable of the RUC [2003] ICR 337, at paragraph 81 of the decision).

49.	The judgements in the House of Lords in Shamoon highlight the fact that, when a hypothetical comparator is cited, it will often be helpful to focus attention on the reason for the relevant treatment.  As Lord Nicholls commented at paragraph 11 of Shamoon:

“This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application?  That would call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others”.

50.	The House of Lords’ decision in Zafar v Glasgow City Council [1998] IRLR 36 reminds us that the “less favourable treatment” element of each of the relevant definitions (the definitions of political discrimination and of victimisation discrimination) cannot be satisfied merely by showing that the perpetrator has engaged in unreasonable behaviour, because (as Lord Morison had explained when Zafar was being decided at Court of Session stage):

“it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee, that he would have acted reasonably if he had of been dealing with another in the same circumstances”

51.	However, the unreasonableness of the treatment complained of is a factor which can be taken into account in deciding what inferences should be drawn, in the context of the question of whether or not particular treatment was accorded on a proscribed ground, or for a proscribed reason.    See Bahl v Law Society [2004] IRLR 799, especially at paragraph 101 of the judgement.  See also paragraph 51 of the judgement in Igen (where the Court of Appeal accepted that a tribunal could decide that there was a prima facie case of unlawful discrimination mainly on the basis of the tribunal’s finding that there was unexplained unreasonable conduct on the part of the employer).

52.	Article 44 of FETO makes provision for helping an aggrieved person to obtain information from the alleged perpetrator.  According to Article 44(2), where a future claimant questions the future respondent, and the latter deliberately and without reasonable cause fails to reply, or his reply is evasive or equivocal, the tribunal:

“… may draw any inference from that fact that it considers it just and equitable to draw, including an inference that [the respondent] committed an unlawful act”.

53.	In Moore (see paragraph 33 above), at paragraphs 96-109 of the decision, the Tribunal analysed the law on the burden of proof, in the context of claims of political and religious discrimination.  

54.	We endorse and apply that analysis in the context of the political discrimination claims in the present case.  We consider that analysis to be an appropriate summary of the principles of law, regarding the burden of proof, in the context of the victimisation discrimination claims also.

55.	At paragraphs 51-60 of the industrial tribunal’s decision in XY Ltd (see paragraph 33 above), the law on the burden of proof is analysed specifically in the context of unlawful victimisation discrimination as defined in the Sex Discrimination Order. 

56.	We consider that this analysis, as set out in that part of XY Ltd, is an accurate statement of the principles governing the burden of proof in victimisation discrimination cases in the context of FETO also.  

57.	Therefore, we have applied the Moore and XY Ltd principles in the circumstances of this particular case.  

Conclusions (Political discrimination liability issues in Case 1)

58.	The claimant asserts that Mr Williamson carried out the conduct complained of in Case 1 because the claimant is a supporter of the Communist Party of Ireland and/or because the claimant is perceived to be a supporter of the aims of Irish republicanism.

59.	Although the claimant comes from a Roman Catholic (“Catholic”) community background, it is quite clear to us that communism (as distinct from Irish national aspirations) are at the heart of his political loyalties.  We are satisfied that the claimant cannot in reality properly be regarded as a supporter, or perceived supporter, of Irish republicanism (except in the theoretical sense that the Communist Party of Ireland works for a political future that is Communist, within an all-Ireland context).

60.	Mr Williamson told us that his actions in this matter were entirely unaffected by the claimant’s support for Communism.  We accept the truthfulness of that explanation.  In accepting that explanation, in particular, we have had regard to the following:

(1)	We closely noted Mr Williamson’s demeanour and manner of giving evidence in relation to that aspect of his testimony in particular; that aspect of his evidence had the ring of truth about it.

(2)	The claimant was unable to point to any substantiated instances of unwarranted mistreatment of him on the part of Mr Williamson, at any time during the period when they worked closely together in the CSEU.

(3)	We have not been made aware of any substantiated overt declarations of strong antipathy to Communism on the part of Mr Williamson.

61.	Against that background, and for those reasons, and having taken account of all of our findings of fact, we have decided that the claim of political discrimination in Case 1 is not well-founded.

Conclusions (Victimisation discrimination liability issues in Case 1)

62.	We have decided that the claim of victimisation discrimination, in respect of the conduct complained of in Case 1, is well-founded.

63.	We are satisfied that the actions which are the subject matter of the Case 1 complaint were taken mainly because of the fact that the claimant had asserted his rights by instituting the job application Fair Employment Tribunal proceedings.

64.	We are also satisfied that, if the claimant had not instituted those proceedings, those actions would not have been taken in relation to him. 

65.	We have arrived at those conclusions against the following background and in the following circumstances, and having taken full account of all of our findings of fact.

66.	We consider that, if one assumes the absence of an adequate explanation, the other evidence in this case constitutes strong prima facie evidence that the claimant was discriminated against because he had taken the job application Tribunal proceedings.  That prima facie evidence includes the cumulative effect of the following:

(1)	There was grossly unreasonable treatment in that:

(a)	The claimant was told that he was not authorised, under internal Amicus governance arrangements, to represent Mr Glenn, even though, in reality, there was no union prohibition against such representation in place in March 2005.

(b)	Mr Williamson construed the 2004 Rules as prohibiting the claimant from being the Branch secretary of Shorts Branch, and as prohibiting the claimant from being a member of Shorts Branch, even though such interpretations were clearly erroneous interpretations.

(c)	The claimant drew the attention of Mr Williamson to the “comma” issue (see paragraph 35 above), but Mr Williamson did not respond to that information.

(d)	At all material times, Mr Williamson knew, and Amicus knew, that the ultimate authority on the interpretation of the Rules was the NEC, but the determination of the NEC was not sought in a timely fashion.

(2)	The claimant’s role in relation to litigation, in the context of the 2003 job application, was at the forefront of Mr Williamson’s considerations in 2003.  (See paragraph 35(23) above).

(3)	As was made clear to us in the course of his testimony, Mr Williamson strongly disapproves of union members pursuing disputes against the union in the course of employment tribunal litigation.  (In this context, we have reminded ourselves that having a motive to discriminate is not the same thing as discriminating.  However, in the context of discrimination, motive, or lack of motive, is nearly always of evidential significance. (See Nagaragan v London Regional Transport [1999] IRLR 572, at paragraph 36).

(4)	The costs of defending tribunal proceedings are very substantial.  The liability in respect of the costs of defending the job application Fair Employment Tribunal proceedings was a liability of Amicus.  In 2005, Mr Williamson was the most senior local official within the Amicus hierarchy.

67.	We considered, but rejected as inaccurate, the explanation offered by the respondents, against the background set out in the last paragraph above.  That explanation was provided mainly in the course of Mr Williamson’s testimony.  In the context of that explanation, we paid careful consideration to Mr Williamson’s demeanour and manner of giving evidence.  In essence, his explanation was as follows.  First, in his testimony, he inaccurately asserted that, in April 2005, Amicus had a rule of policy (“an operational” policy) whereby a union member could not represent another member outside the first union member’s workplace, unless the relevant representative had been authorised in that connection by a full-time official of Amicus.  Secondly, he asserted that the tribunal should accept that his misinterpretation of the rules in respect of Branch secretaryship was reasonable (because, according to Mr Williamson, the relevant rule was ambiguous) and his interpretation was made in good faith in any event.  Thirdly, he argued that any misinterpretation of the rule in relation to the claimant’s entitlement to be a member of Shorts Branch was a reasonable interpretation and was one which was made in good faith.

68.	Having carefully considered that evidence, we were satisfied that the real reason for the conduct which was the subject-matter of Case 1 was the fact that the claimant had taken the proceedings.  That is a much more plausible explanation than the reasons offered by Mr Williamson.  In arriving at that conclusion, we took account of the fact that we found Mr Williamson to be an unconvincing witness on this aspect of the case.  We also took account of all of our other findings of fact.

69.	We are satisfied that, by discriminating against the claimant (by carrying out the acts complained of), the respondents subjected the claimant to detrimental treatment, because this was treatment which subjected the claimant to substantial disadvantages. 

70.	We are satisfied that this unlawful discriminatory detrimental treatment was accorded to the claimant in his capacity as a member of a trade union and not in his capacity as an ex-employee.  Therefore:

(1)		The case falls within the scope of Article 23 and there has been a 	breach of Article 23.

(2)		Because the treatment was accorded to the claimant in his capacity as a trade union member, and not in his capacity as an ex-employee, there has been no breach of Article 33A.  (The fact that this particular union member had been a former employee provided part of the pretext for the respondent’s mistreatment of the claimant.  However, the nature of any excuse offered for a particular act of mistreatment does not have the effect of altering the capacity in which the victim suffers that mistreatment).

Conclusions (The Case 3 liability issues)

71.	We are satisfied that Mr Williamson did carry out the acts which were complained of in the context of Case 3.  However, in doing so, he was merely being consistent with the approach he had already taken (regarding the non-recognition of the claimant as a legitimate Branch Secretary).

72.	In the context of the Case 3 discrimination claims, the appropriate hypothetical statutory comparators are as follows:

(1)	In the context of the political discrimination claims, the comparator will be somebody who has never supported Communism, but who is an individual who purported to act as Branch Secretary of a Northern Ireland Amicus Branch and had been labelled by Mr Williamson as a person who was not entitled to act as such.

(2)	In the context of the victimisation discrimination claims, the comparator will be an individual who had never taken any Fair Employment Tribunal proceedings, but who had purported to act as Branch Secretary of an Amicus Branch, and had been labelled by Mr Williamson as a person who was not entitled to act as such.

We are satisfied that each of those hypothetical comparators would have been treated by Mr Williamson in exactly the same way as the claimant was treated (because the treatment complained of in Case 3 was the logical consequence of Mr Williamson’s attitude to the legitimacy of the claimant’s claim to be the Branch Secretary of Shorts Branch).  Therefore, in Case 3, the claimant’s claims of political discrimination and victimisation discrimination have to fail because, in each instance. The tribunal is satisfied that the claimant was not treated less favourably than Mr Williamson would have treated an appropriate statutory comparator.

73.	Case 3 was begun primarily in order to protect the claimant’s position from a discrimination law time-limit point of view.  In reality, in our view, the conduct complained of in Case 3 is not properly the subject-matter of a free-standing claim of discrimination.  However, the conduct complained of can be taken into account in assessing any compensation payable in respect of the unlawful victimisation discrimination which is the subject of Case 1.

The legal principles (Unjustifiable discipline)

74.	We have already set out relevant extracts from Articles 31 and 32 of TULRO. (See paragraph 19 to 22 above).  At paragraph 26 above, we have set out the factual assertions which are the basis for the claim that the claimant was unjustifiably disciplined (in the sense in which that term is used for the purposes of TULRO).  

75.	Mr Daly realistically accepted that, if the Tribunal were to find against the respondents on the victimisation discrimination issue, it was inevitable that the tribunal would decide that the relevant conduct also constituted conduct falling within Article 32(2)(c).

76.	We have already decided that the acts of which complaint is made in Cases 1 and 2 constituted unlawful victimisation discrimination.  The necessary implication of that determination is that this is conduct falling within Article 32(2)(c), in that it was conduct which consisted of asserting (by bringing Fair Employment Tribunal proceedings) that MSF had contravened a requirement under a statutory provision (that requirement being the requirement to desist from unlawful victimisation discrimination).  Therefore, if the claimant was “disciplined” within the meaning of Article 31 of TULRO, he was being unjustifiably disciplined within the meaning of Article 32.

77.	But was the claimant being “disciplined” within the meaning of Article 31?  We are satisfied that he was.  We are satisfied that the phrase “some other detriment”, for the purposes of Article 31 of TULRO, should be construed in the same way as the same phrase is construed for the purposes of the employment discrimination provisions of FETO.  We are satisfied that, because of the conduct complained of, the claimant suffered significant disadvantage in his capacity as a union member.  Therefore, he was subjected to a “detriment” within the meaning of Article 31.

78.	Accordingly, the claimant is entitled to a declaration that, by reason of the conduct complained of in Case 2, the claimant has been unjustifiably disciplined by the union.

79.	As already noted (at paragraph 27 above), the claimant suggested that, by acceding to a request that he represent Mr Glenn (in the investigatory phase of a disciplinary process), the claimant was carrying out conduct which is within the scope of Article 32(2)(d) of TULRO.  We reject that contention.  

80.	It will be recalled that the conduct described in Article 32(2)(d) is as follows:

“encouraging or assisting a person –

(i)	to perform an obligation imposed on him by a contract of employment, or

…”

	We are not satisfied that Mr Glenn had an obligation, under his contract of employment, to make sure that his personal interests would be adequately defended in the course of any investigatory disciplinary meeting.  Therefore, we consider that what the claimant did by representing Mr Glenn is outside the scope of sub-paragraph (d)(i).

Remedies (The arguments, the legal principles and our conclusions)

81.	There was disagreement between the parties on the question of whether or not the claimant should be entitled to any substantial sum in respect of injury to feelings.  The claimant asserted that he had been much upset, over a lengthy period, because of the relevant acts of unlawful discrimination.  For the respondent, Mr Daly suggested that the conduct complained of had had only a peripheral effect on the claimant.  He also referred us to the leading case on remedies in this area of law, Vento v Chief Constable of West Yorkshire Police [2003] ICR 318.

82.	Subject to the foregoing, the parties refrained from making detailed representations in respect of the amount of any compensation award.  

83.	The claimant has a reasonably robust attitude to the vicissitudes of life within the trade union movement.  However, we are satisfied that the non-recognition of the claimant (in his roles as member of a Branch, as a Branch Secretary and as a representative) were deeply hurtful to him, because of the potential implications for his reputation, in terms of integrity, and because of the adverse effect on his credibility in his capacity as a trade unionist.  (We are satisfied that his role within the trade unions has always been a matter of considerable importance to the claimant).  We note that the non-recognition of the claimant’s Branch secretaryship lasted for approximately 17 months; that the legitimacy of his membership of Shorts Branch was not explicitly recognised even after that period; and that, even now, the union asserts that the claimant was breaching Amicus policy by accepting the Glenn representation role.

84.	In Vento, the English Court of Appeal identified three broad bands of compensation for injury to feelings in discrimination cases, namely between £15,000 and £25,000 for the most serious cases, involving a lengthy campaign of discriminatory harassment; between £5,000 and £15,000 for serious cases not meriting an award in the highest band; and between £500 and £5,000 for less serious cases, such as an isolated or one-off act of discrimination.

85.	In the same case, the same Court made the point that, within each band, a tribunal should have considerable flexibility so as to fix fair, reasonable and just compensation in the particular circumstances of any particular case.

86.	In all the circumstances, we consider that an award of £8,000 for injury to feelings is appropriate.  In arriving at that amount, we have had regard to the findings of fact which are set out at paragraph 83 above, and have taken account of the intensity of the claimant’s injury to feelings and of the lengthy period during which the effects of the discrimination were felt.  We have also taken account of the Vento categories, and of the decline in the value of money since 2002 (when Vento was decided at Court of Appeal level).

87.	We also award £2,240 interest to the claimant, which is based on an interest rate of 8% per annum from the latter part of April 2005 until October 2008 (the time of the promulgation of this decision).

88.	Accordingly, the overall award (incorporating both the principal sum and the interest) will amount to £10,240.

Interest on industrial tribunal awards

89.	This is a relevant decision for the purposes of the Fair Employment Tribunal (Interest) Order (Northern Ireland) 1992.

Chairman:

Date and place of hearing:	1 September-11 September 2008, at Belfast	

Date decision recorded in register and issued to parties: