Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 43/15 FET

1503/15

42/15 FET

1498/15

 

 

CLAIMANTS: Kerry Fleck

Padraig Mackel

 

RESPONDENT: Northern Ireland Public Service Alliance

 

DECISION

 

The unanimous decision of the Tribunal is that:-

 

(1) the claims of direct discrimination on the ground of political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998, are dismissed;

 

(2) the claims of unjustifiable discipline, contrary to Articles 31 - 34 of the Trade Union & Labour Relations (Northern Ireland) Order 1995 ('the 1995  Order'), are dismissed;

 

(3) the claims of unjustifiable exclusion from membership, contrary to Articles 38 - 40 of the 1995 Order, are dismissed; and

 

(4) the Tribunal declares that the claimants were unjustifiably expelled by the respondent trade union, contrary to Articles 38 - 40 of the 1995 Order.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mrs E Gilmartin

Mr R Hanna

Appearances:

The claimants were represented by Mr T Warnock, Barrister-at-Law, instructed by Millar McCall Wylie, Solicitors.

The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons (NI), Solicitors.

 

Outline of case

 

1. Ms Fleck was a trade union official employed by the Communication Workers Union ('CWU'). Mr Mackel was a trade union official employed by the Unite union.

 

2. Both were members of the Northern Ireland Public Service Alliance ('NIPSA'), the respondent union. At the relevant times, they were both simultaneously members of three unions. Ms Fleck was a member of CWU and the General, Municipal, Boilermakers and Allied Trade Union ('GMB') as well as NIPSA. Mr Mackel was a member of Unite and CWU as well as NIPSA.

 

3. There appear to be two factions within NIPSA. Both are on what is commonly understood to be the left wing of politics. One faction is known as ' unity'. It comprises members of the Communist Party of Ireland, members of Sinn Fein and others. The other opposing faction is known as the 'broad left'. It comprises members of the Socialist Party, the Socialist Workers Party, People Before Profit and others. Relationships between the two factions were described, with some restraint, as ' tense'. The evidence in this case drew the Tribunal down the rabbit hole, into the world of trade union politics. In that particular world, words relating to politics do not have the meanings normally ascribed in common usage; they mean whatever the user intends them to mean. The normal understanding of the left/right political spectrum is also distorted. The two opposing factions both describe themselves as ' socialist' and ' democratic'. Both state that they oppose austerity and sectarianism. Both support equal pay and oppose proposed redundancies. Both state they support the advancement of the interests of union members. Insofar as the oral evidence and the documentation can be understood, the broad left faction, or possibly some of its constituent parts, are accused of being ' Trotskyite' and ' ultra leftist'. The unity faction are accused of being ' right-wingers' and ' Stalinist'. It is difficult to discern any commonly understood meaning for any of these terms. For example, Mr Mulholland, the President of the respondent and a leading light in the broad left faction, described himself as a communist, but not as a member of the opposing Communist Party of Ireland. Curiouser and curiouser.

 

4. As indicated above, this Tribunal is unable to identify and isolate the precise doctrinal differences between the two factions. Where the two factions were referred to in evidence, no witness appeared to be entirely clear on the exact reasons for any schism. The Tribunal was not drawn to any specific policy difference. It appears, however, that the Communist Party of Ireland was originally part of the broad left faction, then was not, then was again and now apparently is not; or at least is not to any significant extent.

 

5. Ms Fleck was, at the relevant times, a member of the Communist Party of Ireland. Mr Mackel was regarded as sympathetic to that party. They were both associated with the unity faction. The General Council of the respondent union, at the relevant times, was dominated by the broad left faction.

 

6. The claimants' memberships of the respondent union were terminated by the General Council.

 

7. The claimants allege that:-

 

(i) They had been subjected to direct discrimination by the respondent trade union on the ground of actual or perceived political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 ("the 1998 Order").

 

(ii) They had been unjustifiably disciplined by the respondent trade union, contrary to Articles 31 - 34 of the Trade Union & Labour Relations (Northern Ireland) Order 1995 ('the 1995 Order').

 

(iii) They had been expelled by the respondent trade union in contravention of Articles 38 - 40 of the 1995 Order.

 

(iv) They had been excluded from membership of the respondent trade union in contravention of Articles 38 - 40 of the 1995 Order.

 

Relevant law

 

Unlawful discrimination

 

8. The proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-

 

"22 This provision and its English analogue have been considered in a number of authorities. The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal's task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

 

'The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; 'could conclude' in Section 63A(2) must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

 

That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

 

24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

9. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

 

"We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."

 

10. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

...

 

(73) No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

 

...

 

(75) The focus of the Tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.

 

(76) Whilst, as we have emphasised, it will usually be desirable for a Tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling Tribunals in every case to go through each stage."

 

The Fair Employment and Treatment (Northern Ireland) Order 1998

 

11. Article 23 of the 1998 Order provides:-

" 23 (1) It is unlawful for a vocational organisation to discriminate against a person —

 

(b) who is a member of the organisation—

 

(ii) by depriving him of membership, or varying the terms on which he is a member; or

 

(iii) by subjecting him to any other detriment."

 

Article 3(1) of the 1998 Order provides:-

 

" 3 (1) In this Order 'discrimination' means —

 

(a) discrimination on the ground of ... political opinion; ... and 'discriminate' shall be construed accordingly."

 

Article 2(2) of the 1998 Order provides:-

 

"2(2) 'vocational' organisation means -

(a) an organisation of workers.

 

12. Article 38A of the 1998 Order provides:-

 

"Where on the hearing of a complaint under Article 38 the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

 

(a) has committed an act of unlawful discrimination or unlawful harassment against the complainant -

 

The Tribunal shall uphold the complaint unless the respondent proves that he did not commit that act."

 

Political opinion

 

13. In McKay v Northern Ireland Public Service Alliance [1994] NI 103 the Court of Appeal stated that references to ' political opinion' in the then 1976 Act were not restricted to opinions held in connection with religious belief or community background. "Political opinion" was not confined therefore to Unionist/Nationalist politics. It had to be given its ordinary meaning and would therefore include differences of opinion on the left/right political spectrum.

 

14. In Gill v NICEM [2002] IRLR 74, the Court of Appeal further considered the meaning of ' political opinion' in this context. The claimant argued that his preferred approach its anti-racism was a ' political opinion'. The Court held that it did not constitute a political opinion. It stated:-

 

"The type of political opinion envisaged by the fair employment legislation is that which relates to the conduct of the Government of the State, which may be that of Northern Ireland but which is not confined to that political entity, or which relates to matters of public policy. The object of the legislation is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy or ideology which may predispose the discriminator against him.

 

In the present case, the difference between the 'anti-racist' and 'culturally sensitive' approaches was one of methods, the one being more aggressive and confrontational than the other, but both being means of advancing the interests of people from ethnic minorities. This was not the type of political opinion intended by Parliament in enacting the fair employment legislation."

 

In Ryder v Northern Ireland Policing Board [2007] NICA 43, the Court of Appeal stated:-

 

"(15) Mr McGleenan agreed that the essential ratio of this part of the judgment was encapsulated in the sentence - the type of political opinion in question must be one relating to the conduct of the Governments of the State or matters of public policy. I agree. I do not consider that the Court of Appeal in Gill sought to lay down a universally applicable rule that a view as to the methods by which a particular course should be advanced could never qualify as a political opinion for the purposes of the legislation."

 

15. The Fair Employment Act 1976 did not provide a definition of ' political opinion'. It seems highly improbable that Parliament, when passing the 1976 Act and when considering a legislative response to the Van Straubenzee Report on religious discrimination, ever intended to include left/right political discrimination, much less left/left political discrimination, within its ambit. However, the use of the words ' political opinion', in the absence of any definition such as ' any political opinion relating to the constitutional position of Northern Ireland', inevitably led to the decision of the Court of Appeal in McKay.

 

16. The 1976 Act was not amended following that decision to clarify the definition of ' political opinion'. Furthermore, the 1998 Order which replaced the 1976 Act did not attempt to clarify the definition. At this stage, it can only be assumed that the Executive is content with the definition as it stands.

 

17. The position at present, absent any legislative clarification, is that ' political opinion' means any political opinion which relates to the conduct of the government of the State or to public policy but excluding some, but not all, opinions in relation to methods.

 

The distinction to be drawn between political opinions and opinions in relation to methods, and also the distinction to be drawn between those opinions in relation to methods which are also political opinions and those opinions in relation to methods which are not political opinions is problematic.

 

No doubt further clarification will emerge in due course.

 

18. It is therefore clear that there must be a political opinion or a perceived political opinion within the meaning of the 1998 Order, as clarified by the Court of Appeal, which provokes the allegedly unlawful discrimination, before the Tribunal has jurisdiction under the 1998 Order. The according of a mere appellation, such as ' unity' or ' broad left', or ' Stalinist' or ' Trotskyite' without more, does not appear to be sufficient, where the precise political opinions denoted by those terms and the precise meaning of the differences between those terms are unclear. Equally, membership of a particular party rather than another, or sympathy with one political party rather than with another is not sufficient, where the policies of either party, and the differences, if any, between them, are unclear. The legislation refers to political opinions; it does not refer to membership of, or sympathy with, a political party.

 

The Trade Union and Labour Relations (Northern Ireland) Order 1995

 

19. Article 31 of the 1995 Order provides:-

 

" Right not to be unjustifiably disciplined

31(1) An individual who is or has been a member of a trade union has the right not to be unjustifiably disciplined by the union.

 

(2) For this purpose 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 or a number of persons including an official that —

 

(a) he should be expelled from the union or a Branch or section of the union,

 

(b) he should pay a sum to the union, to a Branch or section of the union or to any other person;

 

(c) sums tendered by him in respect of an obligation to pay subscriptions or other sums to the union, or to a Branch or section of the union, should be treated as unpaid or paid for a different purpose,

 

(d) he should be deprived to any extent of, or of access to, any benefits, services or facilities which would otherwise be provided or made available to him by virtue of his membership of the union, or a Branch or section of the union,

 

(e) another trade union, or a Branch or section of it, should be encouraged or advised not to accept him as a member, or

 

(f) he should be subjected to some other detriment;

 

and whether an individual is "unjustifiably disciplined" shall be determined in accordance with Article 32.

 

(3) Where a determination made in infringement of an individual's right under this Article requires the payment of a sum or the performance of an obligation, no person is entitled in any proceedings to rely on that determination for the purpose of recovering the sum or enforcing the obligation.

 

(4) Subject to that, the remedies for infringement of the right conferred by this Article are as provided by Articles 33 and 34, and not otherwise.

 

(5) The right not to be unjustifiably disciplined is in addition to (and not in substitution for) any right which exists apart from this Article; and, subject to Article 33(4), nothing in this Article or Articles 32 to 34 affects any remedy for infringement of any such right."

 

20. Article 32 of the 1995 Order provides:-

 

" Meaning of 'unjustifiably disciplined'

 

32(1) An individual is unjustifiably disciplined by a trade union if the actual or supposed conduct which constitutes the reason, or one of the reasons, for disciplining him is -

(a) conduct to which this Article applies, or

 

(b) something which is believed by the union to amount to such conduct;

 

but subject to paragraph (6) (cases of bad faith in relation to assertion of wrongdoing).

 

(2) This Article applies to conduct which consists in -

(a) failing to participate in or support a strike or other industrial action (whether by members of the union or by others), orindicating opposition to or a lack of support for such action;

 

(b) failing to contravene, for a purpose connected with such a strike or other industrial action, a requirement imposed on him by or under a contract of employment;

 

(c) asserting (whether by bringing proceedings or otherwise) that the union, any official or representative of it or a trustee of its property has contravened, or is proposing to contravene, 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, or

 

(ii) to make or attempt to vindicate any such assertion as is mentioned in sub-paragraph (c);

 

(e) contravening a requirement imposed by or in consequence of a determination which infringes the individual's or another individual's right not to be unjustifiably disciplined;

 

(f) failing to agree, or withdrawing agreement, to the making from his wages (in accordance with arrangements between his employer and the union) of deductions representing payments to the union in respect of his membership;

 

(g) resigning or proposing to resign from the union or from another union, becoming or proposing to become a member of another union, refusing to become a member of another union, or being a member of another union;

 

(h) working with, or proposing to work with, individuals who are not members of the union or who are or are not members of another union;

 

(j) working for, or proposing to work for, an employer who employs or who has employed individuals who are not members of the union or who are or are not members of another union; or

 

(k) requiring the union to do an act which the union is, by any provision of this Order or the 1992 Order, required to do on the requisition of a member.

 

(3) This Article applies to conduct which involves ... the Certification Officer being consulted or asked to provide advice or assistance with respect to any matter whatever, or which involves any person being consulted or asked to provide advice or assistance with respect to a matter which forms, or might form, the subject-matter of any such assertion as is mentioned in paragraph (2)(c).

 

(4) This Article also applies to conduct which consists in proposing to engage in, or doing anything preparatory or incidental to, conduct falling within paragraph (2) or (3).

 

(5) This Article does not apply to an act or statement comprised in conduct falling within paragraph (2). (3) or (4) if it is shown that the act or statement is one in respect of which individuals would be disciplined by the union irrespective of whether their acts or statements were in connection with conduct within paragraph (2) or (3).

 

(6) An individual is not unjustifiably disciplined if it is shown -

 

(a) that the reason for disciplining him, or one of them, is that he made such an assertion as is mentioned in paragraph (2)(c), or encouraged or assisted another person to make or attempt to vindicate such an assertion,

 

(b) that the assertion was false, and

 

(c) that he made the assertion, or encouraged or assisted another person to make or attempt to vindicate it, in the belief that it was false or otherwise in bad faith,

 

and that there was no other reason for disciplining him or that the only other reasons were reasons in respect of which he does not fall to be treated as unjustifiably disciplined.

 

(7) In this Article -

"contract of employment", in relation to an individual, includes any agreement between that individual and a person for whom he works or normally works,

 

"employer" includes such a person and related expressions shall be construed accordingly;

 

"representative", in relation to a union, means a person acting or purporting to act -

 

(a) in his capacity as a member of the union, or

 

(b) on the instructions or advice of a person acting or purporting to act in that capacity or in the capacity of an official of the union;

·           

"require" (on the part of an individual) includes request or apply for, and "requisition" shall be construed accordingly;

 

"wages" shall be construed in accordance with the definitions of "contract of employment", "employer" and related expressions.

 

(8) Where a person holds any office or employment under the Crown on terms which do not constitute a contract of employment between him and the Crown, those terms shall nevertheless be deemed to constitute such a contract for the purposes of this Article."

 

21. Article 33 of the 1995 Order provides :-

 

" Complaint of infringement of right

 

33(1) An individual who claims that he has been unjustifiably disciplined by a trade union may present a complaint against the union to an industrial tribunal.

 

(2) The Tribunal shall not entertain such a complaint unless it is presented -

 

(a) before the end of the period of three months beginning with the date of the making of the determination claimed to infringe the right, or

 

(b) where the Tribunal is satisfied -

 

(i) that it was not reasonably practicable for the complaint to be presented before the end of that period, or

 

(ii) that any delay in making the complaint is wholly or partly attributable to a reasonable attempt to appeal against the determination or to have it reconsidered or reviewed,

 

within such further period as the Tribunal considers reasonable.

 

(3) Where the Tribunal finds the complaint well-founded, it shall make a declaration to that effect.

 

(4) Where a complaint relating to an expulsion which is presented under this Article is declared to be well-founded, no complaint in respect of the expulsion shall be presented or proceeded with under Article 38 (right not to be expelled from trade union)."

 

22. Article 34 of the 1995 Order provides :-

 

Further remedies for infringement of right

 

34(1) An individual whose complaint under Article 33 has been declared to be well-founded may make an application to an industrial tribunal for one or both of the following -

 

(a) an award of compensation to be paid to him by the union;

 

(b) an order that the union pay him an amount equal to any sum which he has paid in pursuance of any such determination as is mentioned in Article 31(2)(b).

 

(2) An application under this Article shall not be entertained if made before the end of the period of four weeks beginning with the date of the declaration or after the end of the period of six months beginning with that date.

 

(3) The amount of compensation awarded shall, subject to the following provisions, be such as the industrial tribunal considers just and equitable in all the circumstances.

(4) In determining the amount of compensation to be awarded, the same rule shall be applied concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.

 

(5) Where the industrial tribunal finds that the infringement complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

 

(6) The amount of compensation calculated in accordance with paragraphs (3) to (5) shall not exceed the aggregate of -

 

(a) an amount equal to 30 times the limit for the time being imposed by Article 23(1)(a) of the Employment Rights Order ] (maximum amount of a week's pay for basic award in unfair dismissal cases), and

 

(b) an amount equal to the limit for the time being imposed by Article 158(1) of that Order (maximum compensatory award in such cases);

 

and, in a case to which paragraph (7) applies, shall not be less than the amount for the time being specified in Article 40(6) of this Order.

 

(7) This paragraph applies to a case where when the application under this Article is made -

 

(a) the determination infringing the applicant's right not to be unjustifiably disciplined has not been revoked, or

 

(b) the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination."

 

23. Article 38 of the 1995 Order provides:-

 

"Right not to be expelled from union

 

38(1) An individual shall not be expelled from a trade union unless the expulsion is permitted by this Article.

 

(2) The expulsion of an individual from a trade union is permitted by this Article if (and only if) -

 

(a) he does not satisfy, or no longer satisfies, an enforceable membership requirement contained in the rules of the union,

 

(b) he does not qualify, or no longer qualifies, for membership of the union by reason of the union operating only in a particular part or particular parts of Northern Ireland,

 

(c) in the case of a union whose purpose is the regulation of relations between its members and one particular employer or a number of particular employers who are associated, he is not, or is no longer, employed by that employer or one of those employers, or

 

(d) the expulsion is entirely attributable to his conduct.

 

(3) A requirement in relation to membership of a union is 'enforceable' for the purposes of paragraph (2)(a) if it restricts membership solely by reference to one or more of the following criteria -

(a) employment in a specified trade, industry or profession,

 

(b) occupational description (including grade, level or category of appointment), and

 

(c) possession of specified trade, industrial or professional qualifications or work experience.

 

(4) For the purposes of paragraph (2)(d) 'conduct', in relation to an individual, does not include -

 

(a) his being or ceasing to be, or having been or ceased to be -

 

(i) a member of another trade union,

 

(ii) employed by a particular employer or at a particular place, or

 

(iii) a member of a political party, or

(b) conduct to which Article 32 (conduct for which an individual may not be disciplined by a trade union) applies or would apply if the references in that Article to the trade union which is relevant for the purposes of that Article were references to any trade union.

 

(5) An individual who claims that he has been expelled from a trade union in contravention of this Article may present a complaint to an industrial tribunal."

 

24. Article 39 of the 1995 Order provides:-

 

"Time limit for proceedings

 

39 An industrial tribunal shall not entertain a complaint under Article 38 unless it is presented -

 

(a) before the end of the period of six months beginning with the date of the expulsion, or

 

(b) where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as the Tribunal considers reasonable."

 

25. Article 40 of the 1995 Order provides:-

 

" Remedies

 

40(1) Where the industrial tribunal finds a complaint under Article 38 is well-founded, it shall make a declaration to that effect.

 

(2) An individual whose complaint has been declared to be well-founded may make an application to an industrial tribunal for an award of compensation to be paid to him by the union.

 

(3) The application shall not be entertained if made -

 

(a) before the end of the period of four weeks beginning with the date of the declaration, or

 

(b) after the end of the period of six months beginning with that date.

 

(4) The amount of compensation awarded shall, subject to the following provisions, be such as the industrial tribunal considers just and equitable in all the circumstances.

 

(5) Where the industrial tribunal finds that the expulsion complained of was to any extent caused or contributed to by the action of the applicant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

 

(6) The amount of compensation calculated in accordance with paragraphs (4) and (5) shall not exceed the aggregate of -

 

(a) an amount equal to 30 times the limit for the time being imposed by Article 23(1)(a) of the Employment Rights Order (maximum amount of a week's pay for basic award in unfair dismissal cases), and

 

(b) an amount equal to the limit for the time being imposed by Article 158(1) of that Order (maximum compensatory award in such cases);

 

and, in a case to which paragraph (7) applies, shall not be less than £7,600.

 

(7) This paragraph applies to a case where when the application is made the applicant has not been re-admitted to the union."

 

Procedure

 

26. The hearing was held on 16 - 17 May 2016. Due to the unavailability of the respondents' counsel who was involved in a High Court matter, the case did not proceed on 18 May and resumed on Monday 23 May 2016. The parties presented written and oral submissions on 1 June 2016 and a panel meeting was held on the afternoon of that day to reach a decision. This document is that decision.

 

27. The case had been case-managed and directions had been given in relation to the interlocutory process and exchange of witness statements. Those witness statements were to take the place of their oral evidence-in-chief. Each witness was intended to swear or affirm to tell the truth, to adopt their witness statement as their evidence and then to proceed immediately to cross-examination and re-examination. In the event, and following issues raised in the cross-examination of the claimants, the claimants called Mr Brian Campfield, the previous General Secretary of the union as an additional witness. He gave oral evidence-in-chief, followed by cross-examination and re-examination. Similarly, the respondent called Mr Kieran Bannon of NIPSA, as an additional witness. He also gave oral evidence-in-chief, followed by cross-examination and re-examination.

 

28. In accordance with the witness statement procedure the panel heard evidence from the two claimants and on their behalf from Ms Lisa Hoy a member of the General Council, Mr Adam Murray a member of Branch 725 and Ms Kasia Garbal a member of Branch 725. On behalf of the respondent trade union and again in accordance with the witness statement procedure, the Tribunal heard from Mr Patrick Mulholland, the President of the respondent union at the relevant times and from Ms Deborah Whitford and Mr Graham Jones who both worked in the Membership Section of the respondent trade union.

 

Relevant findings of fact

 

29. Ms Fleck applied to join the respondent union in August 2011. Her written application form was not opened to the Tribunal and is presumably unavailable. However, in the course of that application, she had disclosed her employment in the normal way. That much was clear from the standing order form that was opened to the Tribunal. The respondent union had clearly been aware that she was employed as a trade union official in the CWU. Her application was processed by Ms Deborah Whitford who worked in the membership section of NIPSA Headquarters. Applications for membership of the respondent union from individuals currently employed as union officials in the Irish Congress of Trade Unions (ICTU) were also received by Ms Whitford at about that time.

 

30. Ms Whitford sought advice from Mr Brian Campfield who was then the General Secretary of the respondent trade union. He advised her that both the ICTU employees and Ms Fleck were entitled to membership of the respondent union. Mr Campfield was a member of the Communist Party of Ireland.

 

31. Mr Mackel applied to join the respondent union in February 2014. In his case, the written application form was opened to the Tribunal. Again as part of the normal process of applying for membership he had disclosed his current employment as a trade union official in Unite. In that written application form, he had also described his membership of two other unions; CWU and Unite. There was no indication that the membership application form completed by Ms Fleck had been worded any differently and it can therefore be presumed that in the course of her membership application she had disclosed her membership of CWU and GMB. Mr Mackel's application was again processed by Ms Whitford who again sought advice from Mr Campfield. Mr Campfield advised her that Mr Mackel was entitled to membership.

 

32. Both Ms Fleck and Mr Mackel were formally admitted to membership of NIPSA. Subscriptions were collected in the normal way. They were both allocated to Branch 725 of the respondent union.

 

33. Branch 725 was the home for all those members of the respondent union whose current employers did not fit neatly within the standard civil service or public sector categories. It contained an eclectic mix ranging from employees of:

 

(a) various mainstream charities such as Age NI, Disability Action, Barnardos, the Royal Society for the Protection of Birds etc

 

(b) various youth organisations such as Droichead and the Girls Brigade,

 

(c) credit unions such as the Ballycastle, the Bannville and Downpatrick Credit Unions,

 

(d) other bodies as diverse as the Committee for the Administration of Justice, the Craigavon Travellers Support Committee, the Royal British Legion, the Northern Ireland Association for the Care and Rehabilitation of Offenders, the Law Centre, Women's Aid, Bryson House, Comhairle Na Gaelsolaiochta, East Belfast Mission, Falls Community Council, HIV Support, the Hospice, the Presbyterian Church, the Police Rehabilitation and Retraining Trust and the Simon Community,

 

(e) trade unions, ie the CWU, Unite and ICTU,

 

(g) limited companies, ie Legal Island Ltd and Titanic (Belfast) Ltd.

 

34. Branch 725 therefore was a very broad church. It contained employees of a wide range of organisations and there appears to be no common theme to link all those organisations. It cannot be said, for example, that these organisations can all be described as ' public sector'. Such a description would no doubt surprise employees of the Committee for the Administration of Justice and those of the East Belfast Mission. While the majority appear to be ' not for profit organisations', there was no evidence that all the organisations fell within this category.

 

35. Ms Fleck was a longstanding and well known member of the Communist Party of Ireland. Ms Mackel was sympathetic to, and associated with, that political party. Both were supporters of the unity faction within the respondent union and known as such.

 

36. The General Council at that particular time comprised 25 members. Twenty-three of those members were supporters of the broad left faction. The undisputed evidence of Mr Mulholland, the President of the union at that time, was that no one had been elected to any post in the union in recent years unless he or she had been associated with one or other of the two factions. It can therefore be safely presumed that the other two members of the General Council supported or were associated with the unity faction.

 

37. The dispute between the two factions in the respondent union has been a rich source of litigation over recent years prompting decisions in two other matters:-

 

Brendan McKay v NIPSA

 

Philip Boomer v NIPSA and Others

 

38. The Branch Secretary of Branch 725, Mr Sean Paul Conlon, a broad left supporter, was elected to that role in or around March 2014. Following his election he wrote to each of the members of the Branch, including to the two claimants, providing his

e-mail addresses and asking if he could communicate with them through e-mail. Both claimants replied and in both cases it would have been clear from their e-mail addresses that they were employed by CWU and Unite respectively. No issues were raised at this stage by Mr Conlon, or by anyone else in NIPSA Headquarters, in relation to the continuing membership of the two claimants. No one suggested that it was obvious and well-known that NIPSA did not have officials of other trade unions as members.

 

39. On 19 February 2015 Mr Conlon wrote to all of the members of Branch 725 inviting them to the AGM of that Branch to be held on 12 March 2015. Again no query was raised at that stage by Mr Conlon, or by anyone else in NIPSA Headquarters, about the membership of either of the claimants.

 

40. That meeting duly took place at NIPSA Headquarters on 12 March and 12 members out of approximately 750 attended the meeting. Two full-time NIPSA officials also attended. Mr Conlon was re-elected as Branch Secretary. Mr Mackel was elected as Branch vice chair and Ms Fleck as Branch organiser. The minutes do not record anything controversial and certainly do not record any criticism of the membership status of either claimant or indeed of anyone else within the Branch. It seems clear that no such discussion took place in the course of that Branch AGM. If, as the respondent now asserts, the two claimants had obviously not been entitled to membership of NIPSA, it seems odd that such an obvious point had not been raised during that meeting, if not earlier.

 

41. The business of the Branch AGM had been conducted with the assistance of two Headquarters officials. They notified NIPSA Headquarters of the various appointments. The minutes further recorded that Ms Fleck and Mr Conlon had proposed putting forward a particular motion to the NIPSA AGM and that they would liaise in drawing up that motion. The minutes also recorded that Mr Conlon and Ms Fleck had in particular discussed Branch organisation and recruitment and that it had been agreed that they would take forward some work in this area before the next meeting. Again it is clear that there had been no discussion of the membership status of Ms Fleck or Mr Mackel or of any of the other members of Branch 725. That seems particularly odd since the general issue of Branch membership and the scope for recruitment had clearly been discussed. The Tribunal are asked to accept that NIPSA, as a matter of settled policy, did not recruit trade union officials and that it was, at all times, obvious that this was the position. Yet such an ' obvious' point passed unnoticed in the course of this meeting. The two full-time officials did not raise the point, Mr Conlon and Mr Dawson did not raise the point and NIPSA Headquarters did not raise the point, when they received details of the appointments.

 

42. That Branch AGM was also tasked to appoint seven Branch delegates who would attend the AGM for the respondent union and who would cast the votes of the 750 (approximately) members of that Branch as a unitary vote. The casting of that vote on any particular issue could either be determined by a specific mandate agreed on at that Branch AGM or could be left to the delegates at the NIPSA AGM. In this case all voting was left to the delegates. Voting was therefore left to be decided by a majority of those seven delegates, or, more accurately, by a majority of those delegates who attended the union AGM.

 

43. The seven individuals appointed as delegates to the AGM of the entire respondent trade union included Mr Conlon, Mr Dawson and the two claimants, together with Mr Adam Murray and two others. The evidence before the Tribunal suggested that the two claimants and Mr Murray supported the unity faction; Mr Conlon and Mr Dawson supported the Broad Left faction. There was no evidence in relation to the other two delegates. In the event, only Mr Conlon, Mr Dawson and Mr Murray attended the AGM. While Mr Mulholland stated in evidence that he was unaware of how the Branch 725 votes were cast, it seems clear, on the balance of probabilities, that they were cast by Mr Conlon and Mr Dawson to support positions taken by the broad left faction.

 

44. The membership status of the two claimants was however suddenly and without warning queried in a letter signed by both Mr Conlon and Mr Dawson. That letter was addressed to the President and to the General Council. It was received by the President on 20 March 2015. It appears clear that it had not been sent individually to members of the General Council by Mr Dawson and Mr Conlon but that one copy had simply been sent direct to the President, Mr Mulholland, a broad left supporter. Neither Mr Conlon or Mr Dawson gave evidence to the Tribunal. It seems odd that the claimants' membership status had not been queried before or indeed during the Branch AGM meeting. The minutes record plans for Mr Conlon and Ms Fleck to work together. There was no mention of any discord. Suddenly all of this changed. No explanation was furnished by the respondent to the Tribunal for this abrupt change.

 

45. That letter referred to the Branch AGM which had been held one week earlier and stated that:-

 

"Until this meeting the Branch was largely run by the undersigned: Sean Paul Conlon and Eoin Dawson, Branch organiser."

 

That seems to suggest that in better ordered times these two individuals could run the Branch without any undue involvement from members.

 

46. It continued:-

 

"Given this context we were surprised to see such a good turnout at the AGM."

 

It has to be remembered that this was a turnout of at most 12 members (discounting the attendance of two NIPSA full-time members) out of the total Branch membership of approximately 750. Given that this meeting was tasked with the appointment of Branch officials and with mandating the allocation of 750 votes at the NIPSA AGM, it is surprising to see that this was described as ' such a good turnout'. It was a turnout of less than 2%.

 

However it seems clear that the complaint was not about too many members attending per se; it was a complaint about ' packing' the meeting, where supporters of one faction unexpectedly attended a meeting to influence voting.

 

47. The letter stated that amongst the ' genuine members and full-time officials' there were ' at least three others who are known trade union activists from other unions and the trade union movement' The letter described the two claimants and also Mr Kevin Doherty who was a full-time official in the ICTU and a member of the Communist Party of Ireland. The letter pointed out that Ms Fleck had been elected as Branch organiser and a conference delegate and that Mr Mackel had been elected as Branch vice chair and also as a conference delegate. It asked that the General Council investigate this matter as a matter of urgency. It queried, for the first time, the entitlement of the claimants and of Mr Doherty to the membership of the respondent trade union. It stated that a further Branch meeting had been arranged for 26 April 2015 and asked for the assistance of the President and General Council in ensuring a good turnout of ' genuine members' at this meeting to elect a ' legitimate Branch committee and conference delegation'. Asking for the assistance of the President and the General Council to ensure a ' good turnout' might be seen as a request for ' packing' in reverse.

 

48. The letter also referred to ' interference by outside forces in our union and Branch democracy'. The reference to ' outside forces' could not be a reference to the ' unity' faction within the respondent trade union. That was clearly an internal " force". It could only be a reference to the Communist Party of Ireland. It may seem odd that such an anodyne exercise in trade union democracy as the attendance of less than 2% of the Branch membership at a Branch AGM, where none of the other 738 members had been prevented or even discouraged from attending, could have provoked such a reaction. However, the allegation was that one faction had ' packed' the meeting to influence voting. Nevertheless, as Communist coups go, it was hardly the storming of the Winter Palace. Apart from being appointed to some minor Branch posts, members of, or sympathisers with, the Communist Party of Ireland or supporters of the unity faction achieved, on the evidence before the Tribunal, a minority of the delegate positions, with the possibility of, at most, influencing the majority vote of those delegates (on the reasonable assumption that all seven individuals who had put themselves forward as delegates would actually attend the union AGM).

 

49. The stated urgency of this request to the President and the General Council was not explained in this letter or indeed to the Tribunal. Neither Mr Conlon or Mr Dawson were called to give evidence to explain how and why they suddenly realised they had concerns about the claimants' membership or how the letter came about and why there was any particular urgency about any of this. However, it is clear that the concerns of Mr Conlon and Mr Dawson were due in no small measure to the election of both claimants as conference delegates and that it was the timing of the AGM for the entire union that was the driving force behind that urgency. That AGM was to be held on 27 - 29 May 2015, some two months later. It is also clear that this letter was directed to the President who was a supporter of the broad left faction and also indirectly to the General Council where 23 out of the 25 members were supporters of that faction.

 

50. That letter, no doubt coincidentally, was received by the President on the same day as the next meeting of the General Council on 20 March 2015. That meeting was attended by Mr Brian Campfield, ex officio, as General Secretary of the trade union. It will be remembered that he was a member of the Communist Party of Ireland and a supporter of the unity faction.

 

51. The President, Mr Mulholland read out a copy of that letter to the General Council. Mr Campfield who was sitting next to him could read the letter over his shoulder and could see the names of the individuals involved. Mr Mulholland did not orally identify the three individuals openly to the meeting but he summarised the letter and he identified Branch 725.

 

52. It would appear that no vote was taken by the General Council on this matter but that Mr Mulholland determined that the majority of the meeting had decided that the two claimants were not entitled to membership of the union.

 

53. The Tribunal concludes that it is somewhat surprising that such an important matter was determined without a vote and without seeking comments from either of the two individuals whose membership was being challenged.

 

54. The General Council apparently also decided that employees of ICTU such as Mr Kevin Doherty were different from employees of CWU and of Unite and may be entitled to membership of NIPSA. The General Council also directed that the General Secretary, ie Mr Brian Campfield, should examine the range of organisations whose employees were members of Branch 725, which was described as the ' voluntary sector'. Mr Campfield was directed to investigate the matter further and to report back to the General Council prior to any action being taken.

 

55. Separate notes were kept of that General Council meeting on 20 March 2015 by Ms Alison Millar who was then the assistant general secretary of the respondent trade union and who is now the general secretary. Those handwritten notes indicate that Ms Carmel Gates, a member of the broad left and a partner of Mr Mulholland indicated that she knew about this matter and had stated in relation to Mr Conlon:-

 

"He feels personally aggrieved."

 

She had also stated:-

 

"I am convinced - not eligible for membership."

 

She had also proposed that:-

 

"Membership terminates forthwith."

 

56. Mr Mulholland, President of the trade union and a supporter of the broad left faction repeatedly indicated in evidence to this Tribunal that he had been neutral on this matter and that he had not expressed a view on the claimants' membership to the General Council. However, it is clear, according to Ms Millar's notes, that Mr Mulholland had stated:-

 

"We can take a decision not to rep trade union officials."

 

"Do we want to take in officials of other unions - no - not."

 

"Not? Representing - not rep trade union officials - the Branch's remit didn't cover ... ."

 

The Tribunal concludes that Ms Millar's notes were accurate. There would have been no reason for Ms Millar to have contemporaneously falsified notes of this meeting. The Tribunal therefore concludes that Mr Mulholland's evidence to this Tribunal that he had adopted a neutral position to the General Council was inaccurate.

 

57. It is also clear from those notes that there had been a heated discussion about this matter. Mr John Toal had stated he had been ' very worried' and stated that he believed the claimants were eligible for membership of NIPSA. It is also clear that Ms Gates stated that:-

 

"I don't think they are eligible - give them back any money they have paid and apologise to them."

 

Mr Gerry Malone, another supporter of the broad left, stated:-

 

"Already decided that officials of other unions cant/will not be members of - GS to investigate the status of the members raised in letters."

 

Ms Lisa Hoy a member of the General Council gave evidence that Mr Gerry Malone had stated that NIPSA could be leaving itself open to legal action if action were taken against the two claimants. That evidence was not disputed.

 

58. Mr Mulholland, the President, offered to share the relevant letter with the General Council members. That this was necessary is in itself surprising, given that it had been addressed to them in the first place. In any event, it was decided that the letter should be redacted before being given to members of the General Council. However, that redaction was incomplete in that the word ' junior' was left after the redacted name of Mr Mackel. His father, also known as Paddy Mackel, is a well-known NIPSA official. The claimant was commonly differentiated by the use of the word ' Junior'. There cannot have been many other father/son combinations in NIPSA. The Tribunal further concludes that the identities would in any event have been obvious to the General Council, given the prominence of Ms Fleck and Mr Mackel and given the identification of the Branch. It is clear that Ms Gates had previously discussed the issue, at least with Mr Conlon, and would have known their identities. This was an important and novel matter; the possible termination of NIPSA membership for two conference delegates. If any other member of the General Council had genuinely been in any doubt as to the identity of the claimants, it is inconceivable that they did not rapidly make appropriate enquiries to confirm the identities of the claimants.

 

59. On 9 April 2015, Mr Mackel wrote to Mr Campfield as General Secretary of the respondent trade union protesting about the letter discussed at the previous meeting with General Council and at their decision to seek advice on this matter and to query his membership of the union. He asked for various matters to be confirmed, including that his application to join NIPSA had been processed in the normal way and that his ongoing subscriptions were compliant with the NIPSA Rules. No reply was received.

 

60. On 16 April 2015, Mr Sean Maguire, the Chairperson of Branch 725 wrote to both Mr Campfield, General Secretary, and to Mr Mulholland, President of the respondent trade union, protesting again about the actions of the General Council on 20 March 2015 and stating that the letter from Mr Conlan and Mr Dawson had not been agreed or mandated by the Branch. He further stated that it was the view of the Branch that trade unions, as not for profit organisations in receipt of public funds, were employers within the meaning of the Rules. He asked various questions in relation to the actions and proposed actions of the General Council. No reply was received.

 

61. On 17 April 2015 there was a further meeting of the General Council. The report of Mr Campfield and copies of legal advice obtained by him from Mr Harty of McCartan Turkington Breen, the NIPSA solicitors, were issued to each member of the General Council. At that meeting, Mr Campfield formally declared that he had a conflict of interest. He knew Ms Fleck and was a member of the same party. This was hardly news to anyone at the meeting. The Tribunal sees nothing of any significance in the timing of his declaration.

 

62. Given that it was clear that Mr Campfield, as General Secretary of the respondent trade union, had been asked to look into this matter and to report back to the General Council and given that the risk of litigation had clearly been raised at the earlier General Council meeting, the Tribunal does find it at all unusual or in any way surprising that he should have sought legal advice. The evidence of Mr Mulholland was that any attempt to seek legal advice should have been a joint effort between him and the General Secretary but that does not seem, given the apparent urgency of all of this, to be a significant matter. There seems in any event to have been no rule or written procedure requiring joint action before legal advice was obtained.

 

63. Members of the General Council expressed ' disappointment' at Mr Harty's legal opinion and did not agree with it. The minutes record that:-

 

"The view was expressed that consideration be given to anyone who was a trade union official/employee and currently in NIPSA membership, had to be contacted and advised that the membership was in error. An apology issued and a full refund offered. It was stressed that this was not an expulsion but a mistake in membership."

 

64. The minutes stated in clear terms that it was agreed that trade union officials and employees of trade unions were not an organising area for NIPSA and therefore were not a category of NIPSA membership. It further recorded that a review of the other areas and categories of membership in Branch 725 should be conducted to confirm that their membership was appropriate. That review is still ongoing with no apparent progress or result, over one year later.

 

65. The report prepared by Mr Campfield on this matter set out the Rules for ordinary membership which appear in the NIPSA Constitution at Rule 2.1. That Rule provides:-

 

"2.1 It shall be a qualification for ordinary membership that the applicant or member is:-

 

(a) employed in the Northern Ireland Civil Service; or

 

(b) employed by any public authority which is based in Northern Ireland and which has been created by statute or charter or by a body acting on behalf of the Crown; or

 

(c) employed in Northern Ireland by an organisation or company which is financed wholly or partly out of public funds; or

 

(d) employed by an organisation or company undertaking functions which had been transferred from the Northern Ireland Civil Service, or from the public authorities or bodies specified in Paragraph (b) in this Rule or from the organisation or company specified by Paragraph (c) of this Rule; or

 

(e) A trainee who is not an employee but who is placed in the Northern Ireland Civil Service, or any of the public authorities, public bodies, companies or organisations specified in Paragraphs (b) (c) and (d) of this Rule, with such trainee retaining his or her membership as a trainee after the end of his or her traineeship until such times as he or she enters full-time education, or further training or employment; or

 

(f) employed by any other body or person designated by the General Council."

 

66. Mr Campfield stated that ICTU, CWU and Unite were financed partly out of public funds and that therefore this was the basis on which employees had been admitted into NIPSA membership under Rule 2.1(c). He stated that sub-paragraph did not require a separate determination by the General Council. He stated that it was only applications from employees of organisations which did not fall within Rule 2.1(a) to (e) that are required to be considered under Rule 2.1(f) for a particular designation.

 

He referred to the legal advice which was attached to his report. He stated that the legal advice in essence expressed the view, on the information provided, that if the General Council took a decision to expel any or all of the employees of ICTU, CWU or Unite then they would have a prima facie case against NIPSA on a number of counts, including a complaint to the Certification Officer, High Court action and action in the industrial tribunal. He further stated that the legal advice strongly cautioned against taking any action which could bring the union into disrepute and be potentially highly costly.

 

The legal advice was contained in a letter dated 10 April 2015 from Mr Harty to Mr Campfield. Mr Harty quoted the legislation in the 1995 Order and the provisions of Rule 2.1.

 

He stated:-

 

"The question arises as to whether these members meet the membership criteria. Rule 2.1 of the rule book grants certain classes of automatic membership. I understand that ICTU is largely funded out of public funds. I further understand that Unite and CWU may also receive public funding. It therefore seems that the employees of those three bodies, in my view, prima facie qualify for ordinary membership of NIPSA as per the Rulebook."

 

Mr Harty further stated:-

 

"I'm happy to advise further to meet any members of the General Council in relation to this matter. At this stage I would advise caution before taking any steps."

 

67. On 15 May 2015, Ms Fleck wrote to Mr Campfield stating that it had been brought to her attention that the General Council had taken a decision to ' unjustifiably expel us from our union NIPSA'. She pointed out that both the Branch Committee and Mr Mackel had written to him in his role of General Secretary after the last General Council meeting but had received no reply.

 

She stated:-

 

"As you are aware you have a duty and responsibility as General Secretary to both protect the members and the union as an organisation and to uphold the Rules of the union and are also obliged to treat all members equally and not to facilitate an unprecedented and undemocratic witch-hunt by a politically motivated cabal on General Council, lead by the current NIPSA President."

 

No reply issued to that letter.

 

68. The meeting on 17 April 2015 determined ' after a lengthy debate' that the General Secretary should write to the two claimants informing them that they had been accepted into NIPSA membership erroneously, offering an apology, and a full refund of all subscriptions. It was also decided that the General Council would conduct a review of membership eligibility of Branch 725. It also, in particular, determined that:-

 

"The individuals would not be eligible to attend the upcoming conferences."

 

69. The minutes record Mr Campfield's concerns about the decision of the General Council to disregard the legal advice. He repeated his view that the claimants fell within the rules for acceptance into NIPSA membership and that it was likely that there would be a Tribunal case and a complaint to the Certification Officer.

 

70. There was a further General Council meeting on 15 May 2015. It is clear that Ms Hoy and Mr Campfield expressed clear disagreement with the decision of the General Council. It is also clear that the General Council confirmed its determination that the two claimants should not be members of the respondent trade union. There was again apparently no vote and no record of the individual opinions of all of the General Council members. Mr Campfield was instructed to write to the two claimants in accordance with the General Council's decision. Ms Hoy asked what the hurry was as they had been members for years. That hurry does not appear to have been clarified.

 

71. On 18 May 2015, some nine days before the NIPSA AGM, Mr Campfield wrote, as directed by the General Council, to the two claimants stating:-

 

"You are aware that NIPSA General Council has been giving consideration whether it is appropriate for NIPSA to recruit officers/officials from other trade unions into its membership. The General Council has concluded that it does not recruit officers from other trade unions and as a consequence have been asked to advise you that as a result your membership of NIPSA is being terminated with effect from the date of this communication.

 

The General Council has also asked that I apologise to you on the basis that it considers that an error was made in accepting you into NIPSA membership and in the circumstances is prepared to refund any subscriptions you have paid into the union.

 

Under NIPSA Rules the General Council has the final say in such matters and there is no right of appeal against this decision."

 

72. On 18 May 2015 the two claimants wrote to Mr Campfield in his role as General Secretary pointing out that his letter of that date was the first communication that they had received from NIPSA in relation to this matter. They had received no replies to earlier correspondence. They asked for details of the Rules which indicated that there was no right of appeal against the decision. They made it clear that they would not be accepting any refund of union subscriptions and that they felt that they had been unjustifiably expelled from the union.

 

73. On 22 May 2015 the claimants wrote again and pointed out that they had received no reply. There was no reply to that letter.

 

74. The NIPSA AGM took place on 27 May 2015. On that date the claimants wrote again asking for details of the specific Rule of the union which refused a right of appeal. There was again no reply.

 

75. There was a further meeting of the General Council on 26 June 2015. At that meeting the General Council determined again that it would conduct a review of membership eligibility of Branch 725. As indicated previously, the respondent's evidence was that this review is still ongoing with no result. Mr Mulholland, in cross-examination, was unclear about who sat on the review group. It does not appear from the evidence that anyone's membership in Branch 725 has been either confirmed or terminated. The Tribunal was not referred to any reports compiled by the review group.

 

76. Both claimants continued to pay their membership subscriptions to NIPSA through Standing Order. The Assistant General Secretary, Mr Bannon, wrote to both on 21 September 2015 enclosing a cheque for the amount of further subscriptions. Those cheques were returned.

 

77. The claimants lodged applications under the 1995 Order with the Certification Officer. The Certification Officer pointed to her narrow jurisdiction. She stated:-

 

" ... Therefore the assertion that the Certification Officer will determine the crucial issue of eligibility is mistaken.

 

... This will not lead me to consider whether the members were ever eligible for membership (outside my remit), but rather if there was any disciplinary intent in the action taken to exclude the individuals in the union's retrospective decision to deny inclusion."

 

The Certification Officer's determination is not binding on this Tribunal and Certification Officer has, in any event, no jurisdiction to determine any claim under the 1998 Order or under Articles 38 - 40 of the 1995 Order.

 

Decision

 

Direct discrimination on grounds of political opinion

 

78. The Court of Appeal in the case of McKay v Northern Ireland Public Service Alliance [1994] NI 103, considered the definition of the term ' political opinion' as it appears in the legislation which preceded the 1998 Order. The Court concluded that the term had a wide meaning and did not have to be linked with religious belief or affiliation. Carswell LJ stated further that:-

 

"The Tribunal also concluded that a literal interpretation of 'political opinion' could lead to absurdity. It did not instance what that absurdity might be, but presumably it meant that it could be unworkable or unreasonable. I see no difficulty in the general application of the phrase in its ordinary meaning. There may be some cases and they must be exceptional, in which difficulty may arise in its application, but no more so than the rare cases in which the application of the phrase 'religious belief' may cause problems. The strained construction put on "political opinion" by the Tribunal seems illogical and it could cause injustice. It makes discrimination on the grounds of religious or Northern Ireland politico-religious belief unlawful yet it permits as lawful, discrimination on the grounds of an out-and-out political belief independent of religion. While it is unrealistic to deny that political opinion and religious belief are for very many in Northern Ireland closely related, it must be recognised that there are political parties or groups who practice and advocate no such co-relationship."

 

79. One of those ' rare' and ' difficult' cases where the definition of "political opinion" could cause difficulty led to the later decision of Gill v Northern Ireland Council for Ethnic Minorities [2002] IRLR 74, the Court of Appeal again considered the definition properly to be applied to "political opinion" as it appears in the relevant legislation. The claimant in that particular case adopted a particular approach to the issue of anti-racism. He adopted the ' anti-racist' approach. That contrasted with the ' culturally sensitive' approach adopted by his chosen comparator. The Court determined that the particular approach adopted by the claimant in that case did not constitute a ' political opinion' for the purposes of the legislation. It stated that the opinion or opinions held by the claimant which he claimed brought about discrimination against him:-

 

" appear, if we understand the description given by the Tribunal, to be concerned with advocating more aggressive means of achieving the objects of NICEM than the culturally sensitive methods espoused by Mr Yu and apparently favoured by the panel. We can only go on that description, but from it, we conclude that the difference between the anti-racist and culturally sensitive approaches is one of methods, the one being more aggressive and confrontational than the other but both being the means of advancing the interests of people from ethnic minorities. It might be possible to describe such difference as constituting a divergence of political opinion, but we do not think that it is the type of opinion intended by Parliament in enacting the fair employment legislation."

 

80. The Court of Appeal in McKay was looking at the factional dispute which appears ever present in NIPSA. However, in its determination it appears that it was looking solely at the issue of whether or not the interpretation of political opinion was to be restricted to opinions associated with religious opinion or affiliation. It was not considering and did not reach a conclusion on whether in fact a real difference of opinion had been demonstrated on the evidence before the Tribunal between the two opposing factions in NIPSA. That was a matter remitted to the Tribunal to be determined as part of the complaint. In the later decision of Gill, the Court focused its attention on the issue relevant to the present case, ie what precisely constituted a political opinion for the purposes of the legislation. It is clear from the Gill decision that a distinction must be drawn between opinions relating to method on the one hand and opinions relating to political opinion on the other.

 

However, the Court of Appeal, in the yet later decision of Ryder, added a further gloss by indicating that some opinions relating to method might also be political opinions.

 

81. In the present case where the two opposing factions both advocate trade union democracy, socialism, the advancement of workers' rights, equal pay, anti-austerity, and on the evidence before the Tribunal appear to have common views on all matters relating to the governance of the state and relating to public policy, the difference between them, if it can be identified at all, must be one relating simply to method and to matters of internal trade union governance. These are not relevant political opinions for the purposes of the relevant legislation.

 

82. At Paragraph 2 of her statement, Ms Fleck referred to her speaking against a motion allowing Branches to hold money themselves rather then centrally. At Paragraph 51, Ms Fleck refers to unidentified policies of the broad left faction and to casting Branch 725 votes for broad left candidates in internal NIPSA elections. At Paragraph 63, Ms Fleck states that she was expelled because of her political opinion (unidentified) and because she had criticised the broad left's leadership of the union. She refers to derogatory and offensive language in Paragraph 64. At Paragraph 65 she refers to the broad left regarding the Communist Party as right wing and as part of ' a sell out reactionary leadership of the trade union movement'.

 

All of this appears to relate to internal issues of trade union governance; to method rather than to political opinion.

 

83. At Paragraph 3 of his statement, Mr Mackel refers to his opposition to the Socialist Party's ' analysis' (unidentified) and to his support for the Communist Party of Ireland. There is no indication of any identifiable political opinion on which the two parties differ. The Tribunal cannot create one by charitable inference.

 

Mr Mackel refers at Paragraph 10 to broad left election material. Again no differing political opinion is identified. The election material contains such exhortations as ' defend jobs, services and wages', ' stop privatisation' and ' NIPSA must act for its members'. It is the left wing version of motherhood and apple pie. Mr Mackel did not suggest he disagreed with any of this. The election material also suggested that ' workers need an alternative to the right wing and sectarian parties in the Assembly'. The Communist Party is not in the Assembly. Mr Mackel refers to a Facebook post which opposes austerity. The Tribunal assumes the Communist Party does not support austerity as a concept.

 

84. It was for the claimants to establish by way of evidence a real difference of political opinion which could satisfy the legislation as analysed in Gill and Ryder. They have failed to do so. The Tribunal was not drawn to a single difference in political opinion, properly defined. The two factions clearly detested each other with some

enthusiasm. However, evidence of name-calling or of trolling on social media is not sufficient. Alleged adherence to Trotsky's 1938 Transitional Program, a document mercifully not opened to the Tribunal, is not sufficient. Membership of, or association with, one political party rather than another, without a discernible difference in political opinion, is not sufficient.

 

85. The Tribunal therefore concludes that there is no evidence of a divergence in political opinion between the two factions and that therefore the Tribunal has no jurisdiction in this case to consider a claim of direct discrimination on the ground of political opinion. At best the evidence shows that the two factions existed; that they detested each other; that individuals engaged in name calling and in trolling on social media and that power appears to shift back and forth between the two factions. In short, the evidence did not point to a clear difference in political opinion between the two claimants and anyone associated with the broad left faction. It simply pointed to their longstanding and settled mutual dislike.

 

86. The claims of unlawful direct discrimination on the ground of political opinion are therefore dismissed.

 

The Trade Union and Labour Relations (Northern Ireland) Order 1995

 

87. The claimants have brought three separate claims under the 1995 Order. In the first instance they allege that they were unjustifiably disciplined. In the second instance they allege that there were unjustifiably expelled by the respondent trade union and in the third instance they allege that they were excluded from membership of the respondent trade union.

 

88. In relation to the allegation of unjustifiable discipline, this claim must be dismissed. There is nothing in the history of this matter which suggests that there had been any form of disciplinary process or any element of discipline in what occurred. The claimants simply have not shown that their claim could be brought within Articles 31 - 34 of the 1995 Order. The words ' unjustifiably disciplined' are, for these purposes, tightly defined in Article 32. It has not been argued that the circumstances surrounding the termination of the claimants' membership come within one of the situations listed in Article 32. That claim is dismissed.

 

89. Similarly, it is difficult to see why the claimants have argued for two separate claims under the provisions of Articles 38-40 of the 1995 Order. It makes no sense for the claimants to argue that they were simultaneously ' excluded' and ' expelled'. On the facts of the present case it is clear that they were not ' excluded'. They had been members. That wording in any event does not appear within Articles 38 - 40 and that claim is dismissed.

 

90. Turning to the claim of unjustifiable expulsion, the respondent trade union argues that the claimants were never "expelled" from the trade union. It simply argues that instead the respondent trade union realised that a mistake had been made in accepting their membership and that that mistake had been subsequently and retroactively corrected. With respect to the ingenious arguments advanced on behalf of the respondent, that argument is no more than sophistry. The two claimants had openly and without deception applied for membership of NIPSA. Their applications for membership had been processed and approved. Subscriptions had been deducted. While an argument could be made that Rule 2(1)(c) had been given too liberal an interpretation in relation to the claimants, and equally in relation to other members of Branch 725, the claimants were still members in good standing. They were invited to, and took part in, the Branch AGM without contemporaneous objection. It was only after the two claimants were elected as conference delegates that their membership, and only the membership of the two claimants, was terminated. Their membership applications were not retroactively ' corrected'. They were not referred back to membership section for reconsideration. They had been members. Their memberships were terminated. An expulsion is an expulsion. If it walks like a duck and quacks like a duck etc.

 

91. The issue then arises as to whether or not the expulsions were unjustifiable for the purposes of the 1995 Order. Since the respondent did not raise issues under Article 38(2)(b) - (d), the Tribunal must consider whether the claimants did or did not satisfy an enforceable membership requirement for the purpose of Article 38(2)(a) of the 1995 Act.

 

This issue will require the Tribunal to examine the rules of the respondent trade union. There is a great deal of case law on the proper approach to the interpretation of such rules. That case law was examined in Jacques v Amalgamated Union of Engineering Workers [1986] ICR 683 and Warner J stated:-

 

"The effect of the authorities may I think be summarised by saying that the rules of a trade union are not to be construed literally or like a statute, but so as to give them a reasonable interpretation which accords with what in the court's view they must have been intended to mean, bearing in mind their authorship, their purpose and the readership to which they are addressed."

 

92. The evidence in relation to entitlement of membership centred around two documents both compiled in late 1993 or early 1994. The first document was known as the Instrument of Amalgamation which formalised the merger of four separate trade unions into the current respondent trade union. Article 7 of that document refers firstly to employees and trainees in the Northern Ireland Civil Service and in any public authority. The Instrument could, if the parties had wished, have stopped at that point without any further provision. It did not stop at that point. It went on to refer to organisations or companies which were carrying out either public, statutory, educational or charitable functions. The Instrument did not limit the membership of the amalgamated union to employees of the Northern Ireland Civil Service and to employees of public authorities. When going further it did not use the word ' public' to qualify the two words ' organisations' or ' companies'. That much is clear. If, as the respondent argued the word ' public' where it appears before the word ' authorities' in some way qualified other nouns that followed thereafter, it would have made no sense to insert the word ' public' later in the same sentence.

 

93. The Tribunal therefore concludes that the only proper way of reading this Instrument is that for whatever reason appeared appropriate at the time, the individuals drawing up this Instrument decided deliberately to go further than what could be accepted as the core of the amalgamated union and to go further than employees of the Civil Service and employees of public authorities. It specifically referred not just to organisations but to companies. It specifically referred to either public, statutory, educational or charitable functions. It did not, as it could have done, limited membership to public sector organisations or to not for profit organisations or in any other way.

 

94. The second document referred to the Tribunal was the constitution of the amalgamated trade union. It dealt with the question of membership in Article 2.1. In sub paragraphs (a) and (b), it dealt with the core areas of Northern Ireland Civil Service employees and public authority employees. However, it again went further. It could have stopped at that point, if the respondent had wished to do so. Clearly the amalgamated union did not wish to do so. It provided for various other categories of employees. It provided for staff transferred out of the Northern Ireland Civil Service or out of public authorities to private employers as a result of privatisation. It provided also for employees of other organisations which had been specially designated by the General Council. The Tribunal was not referred to any such designations and no witness indicated that he or she knew of any such designations. It appears to the Tribunal, on the evidence before it, that no such designations had ever in fact been made.

 

95. Crucially, the constitution also included at sub paragraph (c) a reference to individuals who were employed by organisations or companies which were financed ' wholly or partly' out of public funds. That reference was specifically not restricted to employees of companies or organisations who were financed mainly, or even to a stated percentage, by public funds. The reference to being financed ' partly' out of public funds must be considered to be deliberate. It is in any event extraordinarily vague and subject to varying interpretation. Crucially, there was no specific exclusion of trade union officials from membership.

 

96. The history of Branch 725 is such that it is clear that a liberal interpretation had been applied to sub paragraph (c). Employees of charitable trusts, of trade unions, of private limited companies, of churches and of advocacy groups such as the Committee for the Administration of Justice etc were all admitted to membership. Employees of such bodies had no connection with employees of the Civil Service or of public authorities. There was no suggestion that employees of the British Legion, the Salvation Army or Morning Star House had been admitted to membership by one General Secretary or to advance the interests of any political faction. There seems to have been a consistently liberal interpretation of the membership rules which is entirely unrelated to the factional dispute at the core of the present case.

 

97. The Tribunal therefore concludes that in expelling the two claimants, the respondent trade union suddenly reversed the previous pattern of a liberal interpretation of sub paragraph (c) and that it had directed that reversal solely at that point in relation to the two claimants. It had been reasonably open to the respondent trade union to have concluded that everyone in Branch 725 needed to be reconsidered in terms of membership. It would have been open therefore for the respondent trade union to have expelled everyone and to have made everyone reapply for membership, or to have left everyone in place and to have made their membership subject to a review. It did neither. It expelled the two individuals who had been appointed as delegates to the NIPSA AGM and where they might have a minimal influence on the casting of the 750 votes and it left everyone else in place subject to what was stated to be a review of their membership. The review seems to have been very slow.

 

98. That review of their membership has caused two or possibly three meetings. In cross-examination, Mr Mulholland could not easily remember the membership of that review group. The review group has not asked the two claimants for their input as it indicated it would. It appears to be taking an extraordinarily long time to reach any conclusion. Over a year has elapsed since the General Council first decided on a review. The Tribunal was not referred to any reports. It does not appear that anyone else has had their membership confirmed or has been expelled. It does not appear to this Tribunal to be a genuine exercise.

 

99. The Tribunal therefore concludes that the two individuals were unjustifiably expelled from the union. They were admitted to membership on a liberal interpretation of Rule 2(1)(c). They were part of a Branch consisting of 750 members where a similarly liberal interpretation had been applied. Yet they were singled out for expulsion immediately before the NIPSA AGM, where they would have been branch delegates it is clear that they satisfied the liberal interpretation of Rule 2(1)(c) in the same way as many other members of Branch 725.

 

The respondents argued that it had been obvious to all that NIPSA did not allow trade union officials to be members. That is unconvincing. There was no specific exclusion of trade union officials in the rule book. There is no statutory or other provision that trade union officials can only be represented by Unite or GMB. If it was such an obvious point, it is difficult to understand why were they accepted into membership, written to, and why were they allowed to take part in the Branch AGM without objection. It cannot be the case that all of this was solely Mr Campfield's doing. Mr Conlon, Mr Dawson, and several NIPSA officials all had ample opportunity to raise this ' obvious' point and failed to do so until the two claimants had been elected as delegates to the NIPSA AGM.

 

100. In terms of the 1995 Order, the claimants could only have been justifiably expelled if they had fallen within sub-paragraphs (a) to (d) of Article 38(2). The only sub-paragraph raised in argument was sub-paragraph (a). It was not the case that they failed to satisfy an ' enforceable membership requirement'. Rule 2(1)(c) had clearly been given a liberal interpretation in relation to Branch 725. They fell within that liberal interpretation of a vaguely worded membership requirement. For the purposes of the 1995 Order they were unjustifiably expelled.

 

Remedy

 

101. The Tribunal heard testimony from the two claimants about stress and insomnia, alleged unemployability and alleged reputational damage, with impact on their personal lives. No medical or other corroborative evidence on this alleged impact was produced. It has to be said that neither the claimants nor any representative of the respondent trade union evinced any degree of stress or upset during the hearing. To the contrary everybody involved, and their supporters, showed every sign of enjoying the process. The Tribunal concludes that there was no convincing evidence of any loss or damage or any injury, including injury to feelings, in this matter.

 

102. The two claimants had simultaneously been members of three separate trade unions. Both had apparently joined the respondent trade union after the last General Council election. It did not seem to trouble either claimant that they were simultaneously paying subscriptions to three unrelated unions. Ms Fleck claimed in cross-examination that she had joined the respondent trade union because of a workplace dispute, presumably in the Communication and Workers Union. She stated that she had felt that she had needed the representation of NIPSA and that she did not wish to rely on either GMB or CWU representatives. It makes the Tribunal wonder why she was happily paying subscriptions to both the GMB and the CWU if she didn't trust either to provide representatives in this alleged dispute or indeed, apparently, in any dispute. The workplace dispute had not been mentioned in her witness statement. It was only raised by Ms Fleck during cross-examination and was not the subject of any particular questioning. No further details emerged and the Tribunal was not referred to any documentation arising out of this alleged workplace dispute and was not referred to any identified NIPSA representative who had acted on Ms Fleck's behalf during this alleged dispute. The Tribunal concludes that this evidence was inaccurate.

 

103. Mr Mackel's evidence on this point was equally unconvincing. He was employed by Unite and had also joined Unite as a member. However, he was for some reason unsatisfied with the prospect of being represented by another Unite official. He had joined CWU when he was working in a call centre some time ago but retained his membership of that union after he left that employment. It is difficult to see why he would have done so. He did not advance any convincing reason for then joining a third union, NIPSA.

 

104. There is no logical reason for anyone to belong to three trade unions simultaneously. There is such a thing as an embarrassment of riches. Why would anyone be in three unions? Why would anyone incur the expense? Who would an employer deal with? Would an employer deal with all three trade union representatives? What would the employer or indeed the employee do if the three trade union representatives took difference approaches to a particular dispute? Trade union membership cards are not meant to be collected like loyalty cards from retail outlets. The purpose of joining a trade union (singular) is to provide for negotiation and representation with your employer.

 

The Tribunal concludes that the only reason either claimant had to join NIPSA was to seek to exercise influence on behalf of the Communist Party of Ireland within the unity faction. It was, to use the current terminology, a crude exercise in ' entryism' or to use the respondent's term ' packing'. The respondent trade union had, in reality, nothing at all to do with their employment. It did not negotiate and did not represent their interests with either CWU or Unite. The reality was that the claimants chose to join a trade union which had no involvement in their place of employment. That is not what trade unions are for.

 

105. In this case, one side of this dispute is as bad as the other. In reality the two claimants gained minor Branch positions and the potential, and no more than the potential, for influencing 750 votes in the NIPSA AGM. When this goal had been realised, and it is not clear how the penny finally dropped with Mr Conlon and Mr Dawson, the response of the respondent trade union was disproportionate. The two claimants, on the evidence before the Tribunal, were the only delegates associated with the Communist Party of Ireland who were union officials. They were expelled from the union. Others whose employment was also only tenuously connected with the public sector, such as employees of private limited companies, were not similarly expelled from membership and still one year later have not been expelled. ICTU employees were not similarly expelled from membership. The respondent makes play of the fact that Kevin Doherty, an ICTU employee was also a member of the Communist Party of Ireland and was not expelled. However, Mr Doherty was not a delegate to the NIPSA AGM. The urgency shown by, initially Mr Conlon and Mr Dawson, and subsequently by the General Council and the President, can only be explained by linking the expulsion with the forthcoming NIPSA AGM.

 

106. So in this game of factional infighting, one faction scored one goal. In response the other faction scored another. No one suffered any physical injury, any financial loss or any real injury to feelings. No one lost their employment. No one was expelled from a trade union which had any relevance to their employment.

 

107. This is a Tribunal which is in place to resolve serious disputes. To take three recent examples, it deals with fixed-term workers who are denied the opportunity to become permanent workers. It deals with individuals who are dismissed from their only employment. It deals with individuals who are dismissed because they have primary caring responsibilities for a disabled child.

 

The Tribunal does not exist to provide a public forum for the periodic ventilation of obscure and internecine disputes within NIPSA. No other union appears to require this regular attention.

 

108. The parties indicated to the Tribunal that this was seen as an important case; the ' most important' case in the local trade union movement in years. It went to the core of who NIPSA was supposed to represent. The Tribunal is unable to see why it should be seen as such. If the previously liberal interpretation of Article 2(1)(c) had been such an issue, the ' review' into the membership of Branch 725 would have proceeded with more alacrity or the rules could have been amended to provide any necessary clarification.

 

109. The Tribunal declares for the purposes of Article 40 of the 1995 Order that the claimants were unjustifiably expelled from the respondent trade union.

 

110. No compensation is payable at this point. If either claimant wishes, they may make application under Article 40(2) in accordance with Article 40(3). The provision relating to minimum compensation would apply only where Article 40(7) applied when application for compensation is made.

 

 

 

 

 

Vice President

 

Date and place of hearing: 16 - 17 May 2016; 23 May 2016; and 1 June 2016, at Belfast

 

Date decision recorded in register and issued to parties: