Artistic Expression, Freedom of Association and Assembly / Protests, Political Expression
Genov and Sarbinska v. Bulgaria
Closed Mixed Outcome
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In February 2012, the Employment Appeal Tribunal (the “Appeal Tribunal”) in London, United Kingdom, upheld a lower tribunal’s finding that a trade union had unjustifiably disciplined four of its members (the “Respondents”) for a leaflet campaign intended to counter an alleged chilling of debate by union leaders. Union leaders had refused to allow discussion of certain motions proposed by the Respondents at the union’s National Delegate Conference, and the Respondents responded by criticizing the union leaders by means of a leaflet depicting cartoon monkeys covering their ears, eyes, and mouth. The union instituted disciplinary proceedings against the Respondents, on the basis that their leaflet campaign violated certain union rules because some union members considered the cartoon racially offensive. The Respondents were ultimately banned from holding office in the union for between three and five years. The Respondents complained to the Employment Tribunal, which held that the union breached a labor law prohibiting members of trade unions from being unjustifiably disciplined. The union appealed, arguing that the labor law in question, which imposed restrictions on union discipline, violated Article 11 (freedom of assembly and association) of the European Convention on Human Rights (the “ECHR”). The Appeal Tribunal dismissed the union’s appeal, holding that the Employment Tribunal did not err in finding that the Respondents were unjustifiably disciplined because they had been banned from office as a result of their criticism of union officials, rather than on any racial offense caused by the cartoon. In doing so, the Appeal Tribunal further held that the labor law in question did not violate the union’s Article 11 rights and, even if it did, the Employment Tribunal was entitled to find that such a violation would be justified.
The dispute between Unison, a United Kingdom-based trade union, and the Respondents arose out of disagreements about the scope of motions to be discussed at the National Delegate Conference (the “Conference”), which meets annually and decides the campaigning priorities and policies of the union. As part of the Conference, branches are generally permitted to submit motions to the union’s Standing Order Committee (the “SOC”), which decides whether to reject the motion or allow it to be put to a vote during the Conference. Four branch officials—Glenn Kelly, Brian Debus, Suzanne Muna, and Onay Kasab—submitted motions. Eight of their motions were rejected.
Ms. Muna, a cartoonist, felt that the rejection of their motions signified Unison’s unwillingness to subject controversial topics to debate. In response to the perceived chilling of speech, Ms. Muna designed a leaflet “depicting three monkeys, one of whom is covering its ears, another its eyes and the third its mouth.” [para. 9] The cartoon was an allusion to the “well-known image of the three wise monkeys who see no evil, hear no evil and speak no evil.” [para. 9] The leaflet also displayed text challenging the SOC’s decision to refuse the motions and asserting the right of the Conference to “discuss union democracy and member controls of a fund, disputes and branch support structures.” [para. 9] Ms. Muna circulated the leaflet and marshalled the support of fellow branch officials, including Mr. Kelly, Mr. Dubus, and Mr. Kasab. Neither Mr. Kelly nor Mr. Kasab saw the cartoon on the leaflet before they agreed to include on it the names of their branches.
After the leaflet was circulated, union leaders received complaints that the cartoon was offensive. At the Conference, Ms. Bev Miller, a leader of the National Black Members Committee, denounced the leaflet as offensive and racist, noting that the chair of the SOC was a black man. The president of Unison, Mr. Malcom Cantello, reported that he had received complaints and authorized an investigation.
The Respondents wrote a letter in response, stating that the motivation behind the leaflet had been their belief that their motions were unfairly refused. The letter further explained that the cartoon was a well-known “Asian Bhudist proverb cartoon” used for political satire “to express a view of not being heard”. [para. 15] They categorically denied allegations of racism but apologized for any unintended offense caused.
After an investigation, Unison decided to charge the Respondents with breaches of union rules. The allegations included participation in the “production of the leaflet [titled] ‘Whose conference’ that gave racist offense to members [and] showed disregard for the union’s aims and objectives” and “attack[ing] the integrity of members of Standing Orders Committee.” [para. 22] While Unison ultimately accepted that there was no racist intent behind the leaflet, it found that the allegations had been proven and that the Respondents had breached union rules. The chair of the disciplinary panel gave evidence that the Respondents “were not racist but that they had been careless.” [para. 25] The Respondents were each barred from holding union office for between three and five years.
The Respondents first filed a claim in the Employment Tribunal alleging that Unison’s disciplinary action constituted direct discrimination and/or harassment contrary to the Employment Equality (Religion or Belief) Regulations 2003. The Employment Tribunal dismissed this first claim on the basis that the Respondents’ political views were not protected under the regulations. The Respondents then filed another claim in the Employment Tribunal, this time alleging they had been unjustifiably disciplined, contrary to the Trade Union and Labour Relations (Consolidation) Act 1992 (the “TULR(C)A”). The Employment Tribunal ruled in the Respondents’ favor on this second claim, concluding that the Respondents were unjustifiably disciplined because they would not have been banned from holding public office for between three and five years if they had not criticized union officials, and dismissing the union’s argument that sections 64 and 65 of the TULR(C)A, which collectively prohibit unjustifiable discipline, violated Article 11 of the ECHR, which enshrines the right to form trade unions and prohibits state interference with this right. Unison appealed the Employment Tribunal’s decision to the Appeal Tribunal.
Justice Supperstone delivered the opinion for the Employment Appeal Tribunal, which was adopted unanimously. The main issue before the Appeal Tribunal was whether the Employment Tribunal had erred in holding that the Respondents were unjustifiably disciplined when the union barred them from public office for between three and five years for disseminating the leaflet depicting cartoon monkeys, with a subsidiary issue being whether the Employment Tribunal had erred in holding that sections 64 and 65 of the TULR(C)A did not violate Article 11 of the ECHR.
Article 11 provides that “[e]veryone has . . . the right to form and join trade unions” and that restrictions on these rights are limited to those that “are prescribed by law and are necessary in a democratic society. . . .” [para. 31] TULR(C)A section 64 provides that union members have a right not to be “unjustifiably disciplined.” For its part, Section 65(2)(c) defines “unjustifiably disciplined” to include being disciplined for “asserting . . . that the union, any official or representative of it . . . has contravened . . . a requirement . . . imposed by or under the rules of the union”. [para. 30] However, section 65(5) excepts from protection acts falling under section 65(2)(c) that “would be disciplined” even if not done in connection with alleging union misconduct. Finally, section 65(6) provides that actions falling under section 65(2)(c) will not enjoy protection if they are false and made in bad faith.
Unison argued that the restrictions on union disciplinary decisions contained in TULR(C)A sections 64 and 65 violate Article 11, relying principally on a European Court of Human Rights (the “ECtHR”) case, ASLEF v. UK, which held that a different provision of the TULR(C)A—section 174—contravened Article 11. Section 174 sets parameters for when a union may lawfully expel a member. The ECtHR in ASLEF held that the restrictions imposed by section 174 went beyond what was necessary to ensure an individual’s right to join a union was protected, and were overly restrictive of unions’ ability to set their own standards for membership.
The Respondents attempted to distinguish ASLEF by arguing that “there is an important distinction to be drawn between . . . protect[ing] a union member from being unjustifiably disciplined . . . and, preventing by legislation, a union from being able to determine for itself its rules and membership criteria.” [para. 37]
Nevertheless, the Appeal Tribunal relied on ASLEF for “the general principles relating to Article 11” [para. 35], including that Article 11’s purpose is to protect the rights of individuals from arbitrary interference by public authorities, including the right to join trade unions. A second general principle is that Article 11 cannot be interpreted as imposing an obligation on associations or organizations to admit whosoever wishes to join. In Demir v. Turkey, also cited by the Appeal Tribunal, the ECtHR held, in the Appeal Tribunal’s words, that “the right to bargain collectively with the employer has, in principle, become one of the essential elements of the right to form and to join trade unions. . . .” [para. 36] In light of these decisions, the Respondents’ counsel conceded that an argument could be made that portions of sections 64 and 65 of the TULR(C)A infringe Article 11 of the ECHR.
Despite this concession, the Appeal Tribunal ultimately agreed with the Respondents’ argument that protection from unjustifiable discipline differs from other sections of the TULR(C)A that restrict a union’s ability to discipline members who do not participate in the union’s industrial action. In doing so, the Appeal Tribunal cited an academic article concluding that section 65(2)(c) may not violate Article 11, and relied on a report on legislation that preceded the TULR(C)A from the International Labor Organization’s Committee of Experts on the Application of Conventions and Recommendations, which drew a distinction between (1) restricting punishment based on members drawing attention to union behavior and (2) limiting disciplinary action in the face of refusal to participate in strikes.
In response, Unison argued that another ECtHR case, Paloma Sanchez v. Spain, supported the union’s contention that its Article 11 rights had been violated. In Sanchez, union members were disciplined for offensive remarks, and the ECtHR held that the decisive reason for their being disciplined was for publishing offensive material, rather than for their membership in the trade union, and that it was, therefore, appropriate to decide the case under Article 10, which protects the right to freedom of expression. However, the ECtHR in Sanchez also made brief reference to Article 11. For that reason, Unison argued that Sanchez shows that disciplinary action for offensive and derogatory materials is permitted under both Articles 10 and 11 of the ECHR.
The Appeal Tribunal dispensed with this argument, reasoning that “the present case is not about whether or not the cartoon of the three wise monkeys ought to be protected by Article 10 or Article 11” [para. 42], and Sanchez was not instructive on whether Article 11 prevents state interference in union decisions to punish those who speak against alleged union misconduct. Hence, the Appeal Tribunal went on to hold that not only was the Employment Tribunal entitled to find that Article 11 was not violated, but even if it was violated, the Employment Tribunal was entitled to find that such a violation would be justified. Specifically, the violation was “necessary in a democratic society to protect the rights of members of unions to hold their unions to account for breaching the union’s own rules, where the members act in good faith.” [para. 44] Moreover, the Appeal Tribunal held that the right to freedom of expression entitles a union member to reasonably express his opinions on internal union matters generally, and the right to freedom of association must entitle members of the union to influence the policies and actions of their union.
After the Appeal Tribunal’s analysis of the Article 11 issue, it addressed Unison’s other grounds for appeal, which focused on the lower tribunal’s interpretation and application of the TULR(C)A. As noted, section 65(5) provides that section 65 will not apply if the action taken by the disciplined individuals “would be disciplined by the union irrespective of whether their acts . . . were in connection with conduct within subsection (2)”. [para. 30] The Employment Tribunal had held that the Respondents would not have been banned from holding office for such lengthy periods had they not alleged wrongdoing on the part of the union, which is conduct falling within section 65(2).
Unison argued that this was an error, and that the Employment Tribunal ought to have considered whether the Respondents’ acts, omissions or statements would be disciplined by the union, not whether precisely the same disciplinary sanction would be applied. Alternatively, Unison argued that each of the Respondents still would have been barred from office for between three and five years if they had not attacked the SOC and had only caused racial offense.
The Appeal Tribunal dismissed these arguments, agreeing with the Respondents that the phrase “would be disciplined” in section 65(5) means “would have been disciplined as the relevant individual was in fact disciplined.” [para. 65] If it were true that section 65(5) meant that an individual being disciplined in any way, no matter how lightly for a particular action, precluded protection under section 65(2), then accusations of union misconduct accompanying other punishable offenses would almost never receive protection.
The Appeal Tribunal held that section 65(5) only applies if a member of a union says or does something for which members would normally be disciplined anyway, independently of the fact that the conduct is connected with a protected act. But if “one of the reasons” for disciplining an individual is attributable to the actual or supposed conduct to which section 65(2) applies, then that individual is unjustifiably disciplined. Accordingly, the Appeal Tribunal held that section 65(5) did not assist Unison, and that the Employment Tribunal did not err in finding that the Respondents were banned from office not because of the offense caused by the leaflet, but because of their attack on the SOC, and were therefore unjustifiably disciplined.
The final issue before the Appeal Tribunal was the application of section 65(6) of the TULR(C)A. This section precludes reliance on the statute when an individual’s assertions are false and made in bad faith. Unison argued that the Employment Tribunal erred in failing to consider Unison’s argument that the Respondents’ claims that the SOC had breached union rules were “clearly and manifestly false” [para. 70], and that this would have allowed a more informed decision regarding whether the Respondents’ knew their statements were false or otherwise acted in bad faith. The Appeal Tribunal rejected this argument, reasoning that because the Employment Tribunal found that the Respondents had acted in good faith, it did not need to examine the truth or falsity of any statement.
For these reasons, the Appeal Tribunal upheld the Employment Tribunal’s decision that the Respondents had been unjustifiably disciplined in violation of section 64 of the TULR(C)A, and dismissed Unison’s appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Appeal Tribunal’s decision expands protection for workplace speech. By affirming that section 64 of the TULR(C)A does not violate Article 11 of the ECHR, the Appeal Tribunal upheld one avenue for union members to shield themselves from retaliation for speech directed at potential union misconduct. As a caveat to this expansion of expression, it may be argued that the Appeal Tribunal’s sanctioning of restrictions on union control of discipline contracts trade unions’ freedom of association under Article 11 of the ECHR.
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