The Fight for Democracy in the GMB Union
|Experts in attacking socialists and socialism|
Some 6 weeks ago I posted an appeal on this blog for people to contribute to the Defence Fund of Keith Henderson, who had been an official of the right-wing GMB union.
I am pleased to say that the costs of £12,000 have now been met and that Keith Henderson won’t be rendered homeless by Tim Roache, the unelected or barely elected General Secretary of the GMB.
Below is a statement by Keith Henderson on some of the corrupt practices that took place around the election of Tim Roache for General Secretary. An election in which only 4.4% of the membership took part. An election in which determined efforts were made to keep Keith off the ballot paper.
Over the summer I exchanged tweets with Tim Roache over the ‘ballot’ of GMB members which decided to support Owen Smith against Jeremy Corbyn. Barely anyone in the GMB voted for Smith, most of the ballot papers never reached the members but the result that Tim Roache wanted, support for New Labour’s candidate was obtained.
Read what Keith has to say about what was tantamount to ballot rigging in the GMB’s election.
Statement By Keith Henderson
All legal costs have now been paid in full. I would like to take this time to thank everyone who donated to the appeal fund and give special thanks to John McDonnell and the LRC for all their support over the last five years.
Everyone who donated will be aware that in September 2013 the Watford Employment Tribunal made a Judgment that I had suffered unlawful direct discrimination by my employer, the GMB trade union, on the basis of my left wing democratic socialist beliefs. The GMB has successfully appealed against this decision, right up to the Court of Appeal, which meant I had to pay the GMB costs of £12,000.
The Court of Appeal was of the opinion that the Employment Appeal Tribunal (EAT) Judge could make a substitute finding of fact without hearing any further evidence or referring the case back to the Watford Employment Tribunal to seek clarification on their Judgment.
My lawyer’s still believe this is wrong and the case should be referred back to the original Employment Tribunal Panel for clarification, but, it will cost too much money to pursue the case any further so I have had to accepted this decision.
Looking on the bright side Socialism is now a protected characteristic under the Equality Act 2010 as a result of this case. This is a permanent gain for the labour movement that has been won.
This case will go down in the history books as having made the law to show discrimination against someone on grounds of left wing socialist beliefs is a breach of the equalities legislation and is therefore unlawful, that in itself is very important.
Paragraph 62 of the EAT judgment, which still stands, states
” At paragraph 48 it concluded that I am a ‘left-wing democratic socialist’ and held the beliefs identified. Moreover it found that “there were clear outward signs of those beliefs being manifested… particularly clear from the picketing incident…” The Tribunal concluded that left-wing democratic socialism is a protected belief for the purposes of the Equality Act 2010 and this conclusion is not challenged on this appeal.”
Socialism is now a protected characteristic under the Equality Act 2010.
It was outrageous that the GMB's right wing bureaucracy argued in court that there should be less protection in the law for a philosophical belief in democratic socialism as opposed to a religious belief. The GMB was arguing for less protection for socialists in the workplace. Thankfully they were unsuccessful.
Despite this in a statement published by the GMB on 11 October 2016, the current barely elected GMB General Secretary, Tim Roache said “This is complete vindication for GMB. Mr Henderson has wasted time and money that belongs to our members by continuously pursuing a case which everyone knew had no merit. GMB will never allow anyone to drag our name through the mud, which is exactly what Mr Henderson tried – and comprehensively failed – to do."
This is a somewhat disingenuous statement from the current General secretary of the GMB to make. It was the GMB bureaucracy at each and every stage of the legal proceedings, time and time again, that spent union members money by having two barristers and two solicitors at each appeal hearing when I just had one junior barrister on a pro bono (free of charge) basis.
If it had really been the GMB's intention to avoid costs and save administrative time and tribunal time, involved in remitting the case back to the employment tribunal, as they claimed, this could have been achieved by asking the tribunal to reconsider the various matters that it relied on in respect of the appeal, (a process that used to be called a review), instead of which a disproportionate appeal was launched by the GMB effectively trying to buy themselves justice with union members money.
The GMB could have avoided paying out any money in legal costs when John McDonnell MP tried to secure a resolution to this dispute by agreement, but, Mr Roache rejected this after initially agreeing to it. Under Mr Roache's leadership of the union it was decided to spend nearly £30,000 in additional legal costs by going through with the appeal when the most they could get back from myself was £12,000.
This was not the first time that the unelected leadership of the GMB had an opportunity to settle the case. Over the course of the employment tribunal itself there were several attempts by myself, my lawyer and John McDonnell MP to broker a settlement.
Instead Sir Paul Kenny (the General Secretary at the time) refused all attempts at conciliation. Preferring instead to spend hundreds of thousands of pounds worth of GMB members money on legal costs in an attempt to crush me.
It appears that the manifestation of my democratic socialist principles in acting on a members decision to place a picket on parliament, (on the day of action in the course of the public sector pensions dispute in 2011), had so offended the principles that drive and motivate the unelected bureaucracy of the GMB that a vendetta was launched against me.
It might have been this or the fact that my close comrades had administered a website pointing out that Sir Paul Kenny had never won a general secretary election in the GMB (losing the only one he had ever stood in back in 2003), yet he had been the general secretary for almost a decade (at the time). Surprisingly, or not so surprisingly as we were later to find out, nobody had ever secured enough nominations to get onto to the ballot paper to force Sir Paul Kenny to face another election.
Perhaps it was the fact I had co authored a draft manifesto arguing that the GMB should be democratised that had upset the unelected incumbents at national and regional level. Arguments that power finance and other resources should be devolved to a workplace and a branch level didn't play well with those whose employment depends on power, finance and resources remaining at a national and a regional level.
Perhaps it was the allegations of nepotism that upset the unelected bureaucracy of the GMB. It is a well known fact in the union that Warren Kenny, the son of Paul Kenny is now employed as the unelected London Regional Secretary.
It could have been any of these reasons or a combination of some or all of them that drove the leadership of the union to spend huge quantities of the members money on legal fees in an attempt to discredit me.
In addition it is the case that if it wasn't for the efforts of all of you comrades in coming to my assistance in helping to raise the £12,000 necessary myself and my family would have been made homeless as a result of the relentless drive with no expense spared to discredit me.
Once again many thanks to all of the comrades who helped out.
We still achieved a historical victory in making socialism a protected characteristic under the Equality Act 2010 and that is what we should take from this legal battle. Every shop steward who is victimised in the workplace for representing their members should bear this in mind.Now moving onto the up coming appeal being heard by the Employment Appeal Tribunal (EAT) regarding the GMB General Secretary election 2015.
The GMB General Secretary election 2015 in my opinion was a bureaucratic stitch-up of monumental proportions.
The report Electoral Reform Services on the election for the General Secretary of the GMB, issued on 12 November 2015, declared:
Number of voting papers despatched: 610,023, Number of voting papers returned to the scrutineer: 26,658, Turnout: 4.4%, Number of votes found to be spoiled or otherwise invalid: 170, Total number of valid votes to be counted: 26,488. Tim Roache was declared the winner with 15,034 votes (56.7%) and Paul McCarthy got 11,454 (43.3%).
Tim Roache had been elected to the highest office in the third biggest union in the country, a union that wields massive influence in the Labour party, on the votes of 2.4% of the membership. The bureaucratic centralism of the GMB leaders, and particularly under the most recent leadership of Sir Paul Kenny, had led to a mass alienation of almost the entire membership.
I attempted to stand in the election on the basis of a socialist Manifesto (already referred to), which outlines the mechanics of reintroducing democracy, accountability and devolution of power in the GMB. Having contacted my branch to ask if the members of the branch could be informed of my intention to stand and to obtain their permission to do so and the branch nomination, in the first instance, moves were made by the unelected bureaucracy of the union to prevent my candidature.
Having made repeated requests my branch secretary and branch president were finally informed that the election had been called and what the timetable was. This was three weeks into the nomination period with the regional office claiming that the official notification to the branch had been sent to the wrong address.
Never the less a branch meeting was hastily organised and members were informed that I was seeking their nomination. The secretary and president were ordered by the unelected regional secretary to withdraw the notification claiming that it was in breach of the by-laws governing the election.
This they refused to do and both were suspended and subsequently disciplined. (Barred from holding office in the union for two and three years respectively) for breaching the rules that governed the election and for failing to comply with an instruction from the unelected regional secretary.
The by-law that the secretary and the president were said to have breached was by-law 13 that said that candidates could not communicate in writing or by electronic mail to promote their candidature.
As I was not a candidate and was seeking enough nominations (you required 30 branch nominations) to become a candidate it appeared to me that there was a grotesque manipulation of the rules and guidelines going on to prevent me or any other rank and file member from seeking nominations to stand in the election.
I sought to make my case within the union structures but to no avail.
Reluctantly I was forced to go to the Certification Officer because all my avenues of appeal were exhausted within the GMB.
Once again the unelected/ barely elected bureaucracy in the GMB used members money to hire a Queens Council (QC) to defend their case while I had to rely on a junior barrister working on a pro bono (free) basis.
The GMB had reversed it's decision to discipline the secretary and the president of my branch, clearly on the advice of their QC. They won their internal appeal within the GMB. The original defence that the GMB had put to the certification officer in response to my complaint was then altered.
We were not allowed to alter our complaint as the certification officer deemed that our barrister submitted it to late.
Given that the certification officer must have been aware that my barrister was working on a pro bono (free) basis, would have had no solicitor support, unlike the GMB's QC and would have had other paid work to attend to, to deny me the opportunity to amend my case after allowing the GMB the right to amend theirs was most unfair
Since then a discrimination expert, barrister Nick De Marco, from the Blackstone chambers has come forward and offered to represent me on a pro bono basis at the appeal against the certification officer's decision that has been lodged at the EAT.
The facts of the case are as follows.
The Certification Officer made a decision on my case in March 2016 and decided to reject my complaints. My lawyer’s believe the reasons for rejecting my complaint are inadequate and perverse.
This is some background to the case.
1) I wished to stand for the position of General Secretary in the 2015 election. On 6 June 2015, the GMB published a number of by-laws governing the election, one of which prohibited candidates from certain communications in relation to the election (by-law 13).
2) I believed that this by-law was unlawful in that it prohibited lay members such as himself from contacting other branches to seek nomination. I made a complaint to this effect and was assured by the GMB that the by-laws were legal. I sought nomination from my own branch (only), during which process the GMB suspended and later removed two officers of my branch for breaching by-law 13, by circulating a newsletter advertising my intention to stand. The election concluded on 12 November 2015
3) During the election period, I believed that - and the GMB acted as though - by-law 13 applied not only to candidates but also to persons in my position i.e. potential nominees. The GMB's initial formal response to the Certification Officer reflected this. The GMB applied by letter on 5 February 2016 to amend its case to state that by-law 13 applied to candidates only and not to me. I only learnt of this amendment on 11 February and sought at the hearing on 01/03/2016 to amend my complaint accordingly. Permission was refused.
My grounds of appeal are:
(1) Unlawful failure to exercise discretion. The Certification Officer misdirected himself in law by failing to exercise his discretion, in the interests of justice and a fair hearing, to grant permission for amendment, further or alternatively;
(2) Procedural unfairness in breach of natural justice. The same failure to grant permission to amend was in the circumstances unfair, further or alternatively;
(3) Perversity. The decision was in the circumstances one which no reasonable Certification Officer properly directing himself could have reached.
In the opinion of my lawyer these are some of the reasons below we have a chance of this appeal being successful.
1) The Certification Officer considered my actions before by-law 13 was introduced, which cannot be relevant to his or the GMB's understanding or application of it.
2) The Certification Officer determined that I made no attempt to contact other branches “regardless” of the correct interpretation of by-law 13, which contention is illogical where by-law 13 evidently and necessarily operated on the GMB's understanding and the GMB's behaviour.
3) The Certification Officer failed to engage with the effect of the removal of the branch officers on my understanding of by-law 13 as applied by the GMB; and noted but did not answer my reasonable explanation for my failure to approach other branches, i.e. that I was waiting for the outcome of an official complaint which I had made to the GMB's Central Executive Council (CEC) seeking deletion of by-law 13.
At a recent rule 3 (10) hearing before the EAT that took place on 28th October 2016, an EAT Judge ruled that my appeal did have merit and should be immediately laid down for a full appeal hearing. Therefore, we have a real chance of getting an enforcement order that GMB General Secretary election has to be rerun, this could happen as early as next year in the summer.
I believe that this is why the current general secretary, Tim Roache, the man with a two point four per cent mandate, has continued with the slur and smear campaign initiated by his predecessor Sir Paul Kenny, the man with no mandate whatsoever. Mr Roache has issued a statement attacking me in a further attempt to try and discredit my name as he knows that I could be a challenger for his position. If the turnout and the vote matched the last election (and it is my intention if the election is rerun that is not the case), the successful candidate would only need 2.5 per cent to storm to power with an increased mandate.
Therefore it comes as no surprise that Mr Roache is very concerned about a potential challenge to his position.
There can be no doubt that because of this the smears and distortions will continue.