[imc-sheffield] Racial Discrimination, Trades Unions and The Law (UK)

[Ralph Kingston]

You may be interested in an industrial (employment) tribunal decision, which, according to Harvey’s Employment Law,  is apparently still the precedent for cases involving complaints of racist or sexist harassment and discrimination. 
   
  The decision in the B Weaver v NATFHE case 1987, which dealt with issues at Bournville College , Birmingham , still allows trade unions to discriminate against victims of harassment, whether racist or sexist. The union was deemed entitled to discriminate because it had an obligation to protect the tenure of the accused and this obligation applied irrespective of the merit of the complainant's case. The union was also under an obligation not to offer advice and assistance to the complainant because to do so involved a conflict of interests. 
   
  The reports of the Industrial Tribunal and Employment Tribunal plus all the documentary evidence submitted to the tribunal by the applicant and the respondent are available for free on the internet at www.legalferret.net. This evidence is very illuminating on how union officials responded to the requests for assistance from the victim.
   
  It is well worth a look.
                          
    
NATFHE (now part of UCU) recently claimed that the case was an old one; it was complicated; Harvey ’s was in error; and NATFHE had managed to get around the decision. However, after my colleagues and I carefully looked at the reports and documentary evidence, it seems clear that any attempt by NATFHE to deal with the Tribunal decisions within its own structure would not enable it to bypass the legal obligation to protect the tenure of alleged harassers.  
   
  The IT and EAT decisions apparently applied to all trades unions and as such would require more than action by NATFHE to overturn the decision.  But any measures taken by the trade union movement as a whole would not overturn a judicial decision.  I noticed on page 355 of the website (press cutting page) that the case went before an appellate judge in a preliminary hearing of the Court of Appeal and the learned Lord Justice upheld the EAT’s decision.  The only way, it would seem, for overturning the judgement would be from a higher court and until this happens the Weaver v NATFHE case continues to act as a precedent. It is also highly unlikely for Harvey ’s Employment’s Law, the most authoritative source of employment law, to include the Weaver v NATFHE case as a referenced source if it was now not applicable as a precedent. 
   
  As the law stands, if our assessment is correct, should a complainant member be offered advice and assistance by a trade union, the accused member could refer to the Weaver v NATFHE case and expect the union to protect his/her tenure. The complainant would be left to pursue the complaint on his/her own as was mentioned by NATFHE’s official and agreed to by the Chair of the industrial tribunal. (page 20 of the IT report section (iv))
   
  Silkman

       
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