By Edward Cooper, Slater Gordon | 6 min
A member of a trade union has a statutory right to inspect the accounting records of their union ( section 30 Trade Union and Labour Relations (Consolidation) Act 1992. Issues have been raised about the relationship between this right and the rights of other members under data protection legislation, as accounting records may include personal data of other members (for instance in respect of expense claims they have made and been paid).
Members of a union’s executive and of other representative bodies may not always be aware of the rights of members to access financial records and therefore to inspect details records of payments made to them for expenses.
In a recent case the Certification Officer, the regulator for trade unions, has confirmed that the processing of personal data for the purposes of complying with the obligation to allow a member to inspect the county records is authorised under UK GDPR. Article 6(1)(c) permits “processing necessary for compliance with legal obligation” ; which enables the Union to process personal data contained in the financial records through allowing access, because s30 of the 1992 Act imposes on the union a statutory obligation to provide access to those records to members on request.
In addition to processing data only where a condition under Article 6 is met (and Article 9 , if special category data is involved) the union needs also to comply with the fair processing principles. In addition to ensuring that the processing for the purposes of compliance with section 30 is covered in the privacy notice, a union may want to consider ensuring that members of the executive and other representative bodies are made aware when making expense claims that members will have statutory access to the union’s financial records, and therefore the details of those claims recorded in the financial records.
A concern in the case before the CO was the use that might be made of the financial records accessed. Whereas there is express statutory provision allowing for the trade union to impose a confidentiality agreement on any accountant accompanying a member to inspect the financial records, the legislation is silent on any obligations owed by the member.
The Certification Officer expressly addressed the position stating “It is open, however, for a union to rely on rules and internal policies to require a member to comply with their confidentiality obligations and to use any disciplinary procedures where appropriate”
Unions may therefore wish to review their rules and any regulations governing the confidentiality terms on which financial records and other material might be made available to members. A union is unlikely to be able to resist complying with a request to provide access to a member until after the member signs a confidentiality agreement (section 30 makes no provision of the request to be refused on this basis); so this is something to be regulated in the rules or regulations made under the rules.
The confidentiality terms should not preclude a member from using copies of financial records for the purposes of raising issues with, e.g., certification officer or the trustees or other senior officers within the union.
CO issues observations
Under changes introduced by the Trade Union Act 2016 trade unions are now subject to a levy which contributes to the cost of the Certification Officer. This may explain a more proactive approach being adopted by the Certification Officer in making observations in those cases in which she has to adjudicate.
After dismissing a complaint about a breach of rule governing the conduct of an election to an executive, the Certification Officer recently volunteered a number of observations including
In light of concerns raised by the complainant about how their complaint was first handled internally (with which concerns the CO had some sympathy) she recommended that the Union review its processes for handing complaints to ensure that they deal with the relevant issues and clearly explain the Union’s view. Had they done so in this case, she considered they could have avoided the internal escalation of the complaint and the complaint to CO.
The complaint had concerned the involvement of paid staff in supporting or endorsing a particular candidate. The CO commented : “If the Union’s position remains that staff should not seek to influence the democracy of the Union then, in my view, it should consider whether it is necessary to include a rule, or to produce guidance, to this effect so that there is clarity in the future. In doing so I would recommend that it ensures that any distinction between support and endorsement is clearly set out.”
She also commented in respect of the production of election addresses. When accompanying voting papers in a statutory ballot these will be the responsibility of the candidate (in terms of any civil action arising from it for defamation, breach of confidentiality, copyright etc ) and not the union, but nevertheless she commented :’I think it important to note … that it is entirely reasonable for a Union to deal with issues arising from a candidate’s election material. It is for the Union to decide whether this should be proactive or reactive, and to decide what steps should be taken where election material is deemed to be in breach of the election rules or inappropriate in other ways”. Whereas she may have had in mind material being published other than the election address provide for under statute, at least in respect of those addresses, the union needs to be careful not to open themselves to a liability which they might not otherwise have through offering advice
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The information provided above does not, and is not intended to, constitute legal advice; instead, all information, content, and material is for general information purposes only. Readers should seek legal independent legal advice with respect to any particular legal matter. No reader should act or refrain from acting on the basis of information contained in this article without first seeking independent legal advice
