Labour & European Law Review Weekly Issue 279 26 July 2012
Lawyers are prohibited from acting for a client in a situation where there is a potential conflict of interest. In Croad v University and College Union, the Employment Appeal Tribunal (EAT) said that the UCU was justified in withdrawing legal support for a member when she issued proceedings against the union as this represented a clear conflict of interest.
Ms Croad, a lecturer at the University of Wales, suffered from dyslexia, depression and stress. In January 2006 she became unable to work because of stress and in March, asked the union for advice about a possible disability discrimination claim against her employer.
However, in May 2006 she complained that the union was not providing her with an appropriate level of support because officials had refused to contact her employer on her behalf or attend a disciplinary hearing in her absence.
She also complained about a union official who told her that if she continued to ignore his advice, he would not be able to represent her. On each occasion, the union investigated but decided her complaints were unfounded.
In April 2007 Ms Croad issued proceedings against the union, saying that it had failed to make reasonable adjustments to the way in which it had given her support and had victimised her, among other things. The union withdrew its offer of legal representation against her employer, citing a conflict of interest.
The Tribunal held that the union had not failed to make reasonable adjustments for her, pointing out that she could just as easily have phoned or written to her employer to say that she was too ill to attend the disciplinary hearing. It also said that the union had followed its normal practice in terms of the support offered to her.
Nor had the union discriminated against her when it said it would only support her if she agreed to abide by its advice as that decision had nothing to do with her disability. The reason that the union withdrew its support was because she had brought proceedings which created a conflict of interest.
And the EAT agreed, saying that the rule which prohibited acting for a client in a situation where there was a potential conflict was one of the most fundamental that applied “in the conduct of a legal practice”.
In the course of acting for Ms Croad against the university, the union might well have been alerted to evidence which could have been highly relevant to any claim she brought against them.
As a result, “there would be the clearest conflict of interest to represent a party in litigation knowing that it was likely you would be the defendant in a claim by the Clamant in respect of the very matters in which you had represented her. This is not a matter of professional embarrassment or distaste, it is a central role in the conduct of legal practice. No lawyer should be placed in a position where their ability to act for a client is compromised by having to ignore a conflict of interest in clear breach of their professional code”.
The EAT added that it was not discriminatory to refuse to act for her when the reason was to protect the union’s own legal interest.
This is a welcome and eminently sensible decision from the EAT which confirms that unions can lawfully withdraw support from members in relation to matters in which the union itself is subject to a legal complaint by the member. Unions still however need to be careful not to fall foul of the victimisation provisions of the Equality Act by, for example, withdrawing support where no conflict of interest arises; or by refusing to offer support to a member because they have previously made allegations of unlawful discrimination against the union.