Key Facts
- •Appeal against two decisions of the Certification Officer regarding complaints about a UNISON branch secretary election.
- •Appeal 1: Complaints about (a) incumbent secretary using branch facilities to enhance her campaign (increased emails with her signature), and (b) the non-independence of the scrutineer.
- •Appeal 2: Complaint that the appellant's removal from union membership shortly before the election (making him ineligible to stand) breached union rules.
- •Appeal 1(a) - Certification Officer struck out the complaint for lack of evidence.
- •Appeal 1(b) - Certification Officer struck out the complaint, finding no reasonable prospect of showing the scrutineer's lack of independence.
- •Appeal 2 - The Certification Officer held she lacked jurisdiction to consider the complaint regarding membership cessation.
Legal Principles
Interpretation of trade union rules follows contract law principles but considers context, custom, and practice, aiming for a reasonable member's understanding.
Embery v Fire Brigades Union [2023] EAT 134; Kelly v The Musicians’ Union [2020] EWCA Civ 736; Heatons Transport (St Helens) Ltd v Transport General Workers Union [1972] IRLR 25; Evangelou v McNicol [2016] EWCA Civ 817; Jacques v AUEW [1986] ICR 683
Certification Officer's power to strike out complaints (s. 256ZA TULR(C)A) mirrors Employment Tribunal's rule 37(1) approach, requiring a realistic, not fanciful, prospect of success.
Embery v Fire Brigades Union [2023] EAT 134; Twist DX Limited v Abbott (UK) Holdings Limited, UKEAT/0030/20/JOJ; Eszias v North Glamorgan NHS Trust [2007] EWCA Civ 330
Certification Officer's jurisdiction under s. 108A TULR(C)A is limited to breaches of rules relating to specific matters (appointment/election to office, disciplinary proceedings etc.).
Trade Union and Labour Relations (Consolidation) Act 1992, s. 108A; Dawes v Royal College Of Nursing D/42-43/10-11; Re UNISON (D/11/00); Lynch; Finlay v. Unite the Union; McDermott v. UNISON
Outcomes
Appeal 1 (Ground 1(a)): Dismissed. Certification Officer's decision to strike out upheld.
Appellant failed to provide evidence to support his claim that increased emails enhanced the incumbent secretary's campaign. The Certification Officer correctly applied the strike-out test.
Appeal 1 (Ground 1(b)): Dismissed. Certification Officer's decision to strike out upheld.
Appellant failed to show the scrutineer lacked genuine independence. The Certification Officer's interpretation of 'independent scrutineer' was reasonable.
Appeal 2: Remitted to the Certification Officer.
Respondent conceded the appeal due to the Certification Officer's initial jurisdictional determination. The EAT decided the jurisdictional question should be decided after factual determination and proper argument.