Unite The Union v Alec McFadden
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lady Justice Elisabeth Laing,Lord Justice Henderson |
| Judgment Date | 19 February 2021 |
| Neutral Citation | [2021] EWCA Civ 199 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2020/0043 |
| Date | 19 February 2021 |
[2021] EWCA Civ 199
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Lavender
UKEAT/0147/19/DA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henderson
Lord Justice Singh
and
Lady Justice Elisabeth Laing
Case No: A2/2020/0043
Mr Oliver Segal QC (instructed by Unite the Union) for the Appellant
Mr Marc Beaumont (instructed by Beaumont Legal Services) for the Respondent
Hearing date: 21 January 2021
Approved Judgment
Introduction
The main issue of law which arises in this case is whether the doctrine of res judicata applies to the disciplinary proceedings of a trade union.
On 19 December 2019 the Employment Appeal Tribunal (“EAT”) allowed the present Respondent's appeal against the decision dated 4 April 2019 of the Certification Officer (“CO”), who had held that the doctrine of res judicata does not apply to the disciplinary proceedings of a trade union.
The case arises from two sets of disciplinary proceedings that Unite the Union (“Unite”), the Appellant, brought against Alec McFadden, the Respondent. At the relevant time the Respondent was the chair of Unite NW522 Branch. Both disciplinary proceedings followed an allegation that the Respondent had slapped a woman's bottom. She was also a member of Unite. The Respondent has always denied the allegation.
The first disciplinary proceedings panel found that the alleged incident had occurred and constituted misconduct under rule 27.1.7 of Unite's rulebook. The Respondent unsuccessfully appealed against the decision to an internal appeal panel; but subsequently the Assistant Certification Officer (“ACO”) held that rule 27.1.7 was inapplicable, as the incident had taken place outside the workplace.
The second disciplinary proceedings were brought under rules 27.1.1, 27.1.4 and 27.1.5 of the Unite rulebook. It was found in these proceedings that the actions of the Respondent breached those rules; and sanctions were imposed, including a bar from holding office in Unite.
The Respondent complained to the CO that the doctrine of res judicata applied and the second disciplinary proceedings were in breach of that doctrine. The CO held that the doctrine did not apply to Unite's disciplinary processes. The Respondent's appeal to the EAT was successful: see para. 2 above.
Unite now appeals to this Court. Permission to appeal was granted by Lewison LJ on 25 February 2020 for the reason that the grounds of appeal raised important issues and had a real prospect of success.
At the hearing of this appeal we heard submissions from Mr Oliver Segal QC for the Appellant, who did not appear below; and from Mr Marc Beaumont, who did. I express our gratitude to both counsel for their assistance.
Factual background
In October 2015, Unite received a complaint from a female member, alleging that the Respondent had slapped her bottom. The alleged incident was said to have occurred at an event at a restaurant during the ‘March against Austerity’ on 3 October 2015. Neither the event nor the march was organised by Unite. The Respondent denied the allegation.
The first disciplinary proceedings were brought by Unite under rule 27.1.7 of Unite's rulebook. The rule states as follows:
“27.1 A member may be charged with:
…
27.1.7 Breach of the Union's policies on diversity, bullying and harassment in the workplace, which will include cyber bullying and harassment.” (Emphasis added)
On 15 April 2016 the panel in the first set of disciplinary proceedings found that the alleged action of the Respondent had occurred and amounted to misconduct under rule 27.1.7. The matter in due course came before the ACO (HH Jeffrey Burke QC). His decision was given on 3 October 2017: that there was no misconduct under rule 27.1.7, because the incident did not occur in the workplace; and that Unite had not relied on any other rules in its rulebook. On 20 November 2017, after considering the parties' submissions on remedies, the ACO made an order which included a declaration that Unite's first disciplinary proceedings and the penalties imposed were “null and void and of no effect”.
Unite brought the second set of disciplinary proceedings against the Respondent on 28 November 2017. These proceedings concerned the same factual allegation, but were brought under rules 27.1.1, 27.1.4 and 27.1.5 of the Unite rulebook. These rules are as follows:
“27.1 A member may be charged with:
27.1.1 Acting in any way contrary to the rules or any duty or obligation imposed on that member by or pursuant to these rules whether in his/her capacity as a member, a holder of a lay office or a representative of the Union.
…
27.1.4 Inciting, espousing or practising discrimination or intolerance amongst members on grounds of race, ethnic origin, religion, age, gender, disability or sexual orientation.
27.1.5 Bringing about injury to or discredit upon the Union or any member of the Union, including the undermining of the Union, branch or workplace organisation and individual workplace representatives or branch officers”
The hearing in the second disciplinary proceedings took place on 10 December 2018 and it was determined that the Respondent was in breach of rules 27.1.1, 27.1.4 and 27.1.5. The sanction imposed was that the Respondent was barred from holding office in Unite.
In the meantime the Respondent had made a second complaint to the CO on 14 March 2018. A hearing took place on 21 March 2019 before the CO, Sarah Bedwell, to determine whether Unite was entitled to bring the second disciplinary proceedings. Her decision, given on 4 April 2019, so far as material, was that:
(1) The doctrine of res judicata does not apply to decisions made under Unite's disciplinary procedures. The CO held that the relationship between Unite and its members is comparable to that between an employer and an employee.
(2) There was no decision to which the doctrine of res judicata could apply even if it were applicable. This was because the decision of the panel in the first disciplinary proceedings had been declared null and void by the order of the ACO.
The decision of the CO was appealed by the Respondent to the EAT, where it was heard by Lavender J on 7 October 2019. His judgment was handed down on 19 December 2019, reversing the decision of the CO.
Material legislation
Section 108A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) provides:
“(1) A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect, subject to subsections (3) to (7).
(2) The matters are—
…
(b) disciplinary proceedings by the union (including expulsion);
…”
Section 108B, which has the side note “Declarations and orders”, provides:
“…
(2) If he accepts an application under section 108A the Certification Officer—
…
(d) may make or refuse the declaration asked for, and
(e) shall, whether he makes or refuses the declaration, give reasons for his decision in writing.
(3) Where the Certification Officer makes a declaration he shall also, unless he considers that to do so would be inappropriate, make an enforcement order, that is, an order imposing on the union one or both of the following requirements—
(a) to take such steps to remedy the breach, or withdraw the threat of a breach, as may be specified in the order;
(b) to abstain from such acts as may be so specified with a view to securing that a breach or threat of the same or a similar kind does not occur in future.
…
(6) A declaration made by the Certification Officer under this section may be relied on as if it were a declaration made by the court.
…
(8) An enforcement order made by the Certification Officer under this section may be enforced in the same way as an order of the court.
…”
The decision of the Certification Officer
In her decision, at paras. 16–17, the CO summarised the submission which was made by Mr Beaumont on behalf of the Respondent: that the decision taken in the first set of disciplinary procedures prevented Unite from taking further disciplinary action arising from the same complaint. He argued that cause of action estoppel, issue estoppel and the rule in Henderson v Henderson (1843) 3 Hare 100 are all part of the principles of res judicata.
In recording the submissions made by Mr Potter (who was then counsel for Unite) at para. 18, the CO noted that it was accepted that a decision by a union to suspend or to expel of a member is quasi-judicial in nature but it was submitted that such decisions are not amenable to the doctrine of res judicata, as they are not made by a professional regulatory body reaching an independent decision in respect of a professional on its register.
In setting out her decision and her reasons, at para. 34, the CO said that the relationship between a professional body (which controls access to a profession) and its registrants or members, is different from that between a union and its members. A professional has no choice whether to register with, or become a member of, the professional body if they wish to work within that profession. Furthermore, a professional disciplinary case in almost all cases arises following a complaint from a third party (for example a client) and the professional body will be an independent adjudicator of that complaint.
At para. 35, the CO...
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