Employment Appeal Tribunal

David Beaumont v amicus MSF

Appeal number EAT/0122/03 18^th June 2004

Applicant’s Skeleton Argument

This case is to decide the appropriate compensation for the respondent’s admitted breach of section 64 of the Trade Union and Labour Relations Act 1992.  I will argue to each of the six headings in my schedule of loss.

1) Injury to Feelings

a) For the act of expulsion.   I will argue that, unlike the applicant in NALGO V Courtney Dunn, I did not and would never resign from the union.  I have been an active union member for 20 years. I cannot imagine a union member to whom illegal expulsion could be more hurtful.  In my 20 years I have held lay office as branch secretary, branch chair, regional council delegate, regional council executive committee, regional council treasurer and delegate to annual conference. I would normally spend 1 full day and up to 3 evenings a month on union activities and there is very much a social side to being involved in the union. The act of expulsion was particularly injurious to me.   At the time of expulsion I had no reason to believe it was not for life; indeed that was the intention of the respondent.  I will show that it is only my dogged pursuit of them through the courts that resulted in my re-instatement. 

b) By the reasons given.   Especially the charge of anti-Semitism/racism, which is particularly offensive to me.  I am avowedly anti-racist, my branch for example affiliated to the anti-nazi organisation Searchlight while I was secretary.  My chosen representative in previous hearings with the union is Jewish.  One of my supporting witness statements is from another Jewish member of amicus MSF (p107 of the bundle).  Jewish members of amicus MSF wrote a letter of protest to the union about my expulsion (p147 of bundle). 

c) By the method of its delivery.  I was actually at the NEC meeting where they decided to expel me.  I was not present for the discussion, in fact I was not told it was on the agenda and afterwards I was not told it had been discussed or that I had been expelled.  Therefore when I received the letter from Roger Lyons in the post 3 days later, I felt particularly hurt that it had been determined secretly in this way at a meeting at which I was present.

d) By the union’s insistence that the allegations which justified the expulsion were true, for refusing to ever withdraw the allegations, for re-stating the allegations as true at the time of my re-instatement and for publishing this in the NEC minutes (pp 63-65 of the bundle).  Had the union retracted the allegations at the time of re-instatement my injury to feelings would undoubtedly have been reduced.

It is partly this injury to feelings that has made me pursue this matter through four court hearings and one preliminary hearing.  Overall I would put this injury to feelings, given my lifelong commitment to my union, the false allegations accompanying it, the method of its delivery and the repeated publication and insistence upon the false allegations, in the same category as the middle band of racial discrimination, which according to Vento v Chief Constable of West Yorkshire police was £5,000 to £15,000 back in 1998.

2) High handed behaviour

a) In the conduct of my discipline.   Although the final act of expulsion constituted the breach of the act, it was I will argue the culmination of a very high handed exercise in discipline against me.   There is obviously a direct causal link between the union’s disciplinary process and the expulsion; therefore I believe high handed behaviour in the process, including the period leading up to the expulsion, is relevant here.  I am content for the Tribunal not to examine the truth or otherwise of my allegations for which I was disciplined.  However it is important that the process of discipline is assessed for high handedness.

I will demonstrate where the union

1. failed to follow the union rules (p1 of bundle)
2. breached policy on disciplinaries set up by Annual Conference, the supreme governing body of the union (p7 of bundle)
3. failed to follow its own published procedures (p8 of bundle)
4. set up an investigation panel which was ultra vires
5. Ignored the legitimate investigation by my branch (p18)
6. failed to inform me of the charges against me
7. failed to provide me with a copy of the disciplinary panel’s report
8. failed to inform me that the decision to expel me was about to be made
9. failed to invite me to answer the charges, in breach of rule
10. Ignored a High Court ruling against them relating to the proper conduct of disciplinary investigations (p 145)
11. Overrode the opinion on the above of their own President (P28 of bundle)
12. Invented charges against me that had no original complainant

b) At the execution of the discipline.  The decision to expel me was taken at the NEC meeting on 23^rd February 2002.   This was entirely outside the then rules, which stipulate that I should be present at any such consideration, in fact I should be given 14 days notice (Rule 16 (l), p3 of bundle).

c) After Expulsion – Appeal.  Similarly after my expulsion the union continued to behave in an arrogant manner, denying me documents and not responding to letters.   It was only when I took the case to law, and sent them my further and better particulars and they received legal advice that they would lose, that prompted them to devise a bogus appeal.  The appeal never actually happened, but I was re-instated at it!  Moreover the reporting of this ‘appeal’ in the NEC précis, minutes and reports (pp 63-65 of the bundle) is a study in arrogance as well as  contempt for the “Tories’ Trade Union and Labour Relations Act” (NEC report p65 of bundle, left column).

d) After re-instatement.   It was established at the last EAT hearing that when the union re-instated me they failed to take all necessary steps to restore the status quo ante.  Therefore I maintain that high handed behaviour by the respondent extends into the handling of my court case, post re-instatement.  The arrogance of the union during this period is documented in the ET written decisions.  The ET awarded me costs because of the behaviour but I maintain this is not to be confused with compensation for high handed behaviour, which the ET were not able to consider.

e) Present day.  The union have still not taken all necessary steps to restore the status quo ante.  For example the clear instructions given to my branch and regional council by ex-General secretary Lyons have never been rescinded.  This is despite requests by me and both bodies concerned, and complaints by branches. Moreover even after the EAT hearing which told them they had failed to take the necessary steps, they still have not.  This is the indolent arrogance of the union, moreover it shows their disrespect for the 1992 Act. 

I believe the respondent’s high handed behaviour is the most outstanding aspect of the whole case and therefore an award of £10,000 would be appropriate.

3) Aggravated damages

For the union’s conduct of their defence at the ET and EAT hearings and to date. In Zailwalla & Co and anor v Walia, the EAT held that in exceptional case, employment tribunals can award aggravated damages to reflect the way in which proceedings have been defended.   I will argue that this applies to the ET hearing, the ET costs review and the EAT hearing.   In particular I believe the respondent have put a monumental amount of  effort into defending the case, delaying their concession to the last minute in order to maximise my effort, refusing to reasonably settle, spending far more in legal fees than they could recover in their costs review, unnecessarily disputing the allocation of the case to the EAT, frequent references to my case being wholly misconceived, frivolous or vexatious.  All this has caused me a huge amount of work, which I have had to undertake without counsel, has caused me to worry unnecessarily about awards of costs against me and has been calculated to cause the maximum distress and workload.      It is to be noted that in Zailwalla & Co and anor v Walia the EAT disagreed that misconduct in the defence of proceedings would be by way of an order for costs.   Indeed although the ET did award me costs it was not strictly for this reason, therefore I am entitled to ask the EAT to award aggravated damages.  I consider £5,000 an appropriate sum.    

4) Exemplary damages

For malicious publication of material highly defamatory to me in NEC minutes distributed to all union branches, and in various meetings, reports and letters.    In Bradley v NALGO 1991, which considered compensation for unjustifiable discipline, Mr Justice Wood concluded “There may also be cases for aggravated and possibly exemplary damages.”  I believe this is just such a case.    As the reasons given for my expulsion, I was accused of anti-Semitism.  This charge has never been withdrawn, despite repeated requests and a letter in support of me from leading Jewish members of amicus MSF.  The charge is clearly defamatory.  It was published in the disciplinary report, discussed by the entire NEC and alluded to in various reports of my expulsion.  It would not be possible to prevent this given reason for my expulsion becoming common knowledge in the union, and it would have been foolish of me to try and tackle it by suppression.   Therefore I wrote to the union to ask for its withdrawal after it was made, after I was expelled and after I was re-instated.  Fellow members also campaigned for its withdrawal.  To this day it has not been withdrawn.  In fact at the time of my re-instatement it was stated byt the NEC “that the correct factual decision [expulsion] was taken concerning Mr Beaumont and that the allegations made against him were proper.” (P64 of the bundle).

I have never seen the original accusations of anti-Semitism which were made against me nor have the union ever identified a complainant.  Indeed I believe there is no complainant, that the allegations were constructed at a meeting of the investigation panel (p37 of bundle, ‘other complaints’). 

I believe the behaviour of the union was malicious because similar disciplinary action had already been carried out against me and, upon application to the Trade Union Certification Officer, found to be in breach of the unions’ rules.  In that case I obtained an enforcement order that my appeal be properly heard (p143 of the bundle).  

The defamation against me was of the worst kind and has not been retracted in any way despite my successful trudge through the courts, I would ask for £40,000 to be awarded in damages.

5) Miscellaneous expenses

Incurred as a result of my illegal expulsion, for my union appeal, my ET and EAT.  Including travel, loss of earnings, stationary and copying costs.  NB excludes my costs already awarded at the ET.  I estimate this cost at £2,500 and will provide a full breakdown at the hearing.  I have added to the bundle documentation to indicate my likely loss of earnings figures, per day spent. 

6) Interest

The act occurred on 23^rd February 2002, some two years and four months ago.  It has taken me this long to complete my legal recourse.  According to the extended reasons of the ET,

“The Respondent's behaviour appears to have been designed to incur expense and to lengthen the proceedings.”

And

“It seems to the Tribunal that the applications to postpone and the failure to make, in particular, proper disclosure, were all designed to prolong the proceedings and to attempt to dissuade the Applicant from continuing with them.“

To date there have been 3 applications to postpone by the respondent.  They have also significantly extended the timescale by appealing my award of costs and by disputing the right of the EAT to hear the case. I do not believe it is material whether they were entitled to do so, the fact remains that justice has been delayed.   I would not want the respondent to profit from such a delay, particularly in view of the ET’s comments.  Therefore I ask that interest be backdated to the date of the illegal act.   This may also discourage the respondent and others from contemplating delays in similar cases.

7) Minimum award

Lastly I am aware there is a minimum award payable. I consider the circumstances of my case are significantly worse than most and I know how the union would represent and take comfort from a minimum award.  Therefore I ask the Tribunal to avoid a minimum award. 

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