Scargill v National Union of Mineworkers

The Employment Appeal Tribunal dismissed the appeal. A finding by the Certification Officer on whether a union branch existed was essentially factual and could be challenged only if it was irrational or not rationally open on the evidence. A statutory requirement that union members have an equal entitlement to vote under section 50 of the Trade Union and Labour Relations (Consolidation) Act 1992 applies to elections for positions governed by section 46. It does not extend to a prior process by which candidates are nominated or selected. A failure to place members in properly constituted branches may be an internal breach of union rules, but it cannot create a branch which does not in fact exist. A subsidiary finding made only on the way to the decision was not separately appealable.

Mr Arthur Scargill appealed against parts of a decision of the Certification Officer concerning National Union of Mineworkers elections for Yorkshire Area representatives on the National Executive Committee in April/May and July/August 2008.

The Certification Officer had found that the alleged Yorkshire Area Office Branch was not a branch constituted under the Union’s rules, rejected a complaint under section 50(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, and declined to determine generally whether every member had to belong to a branch. He had nevertheless found breaches arising from the application of the 30 per cent nomination rule. The appeal concerned the branch finding, the section 50 issue, the refusal to determine the wider branch-membership question, and a subsidiary finding on the status of Standing Order 9.

1. Appeal dismissed. The Tribunal upheld the Certification Officer’s findings and decisions under appeal.
2. The question whether the Yorkshire Area Office Branch was a properly constituted branch was essentially one of fact. The Certification Officer had carefully considered the documents, evidence and submissions. His conclusion was rationally open to him and was not capable of challenge as perverse. Evidence that the name had been used historically did not establish a rule-book branch. An anomalous failure to allocate members to properly constituted branches could not deem such a branch into existence.
3. Section 50(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 requires equal entitlement to vote in an election of a position specified in section 46. Chapter IV of Part I applies to the election process after candidates have been nominated. It does not regulate a prior branch-level nomination or candidate-selection process, even where that process involves voting. The statutory references to candidates, including sections 48(1) and 54(1)(a), supported that construction.
4. The conclusion concerning section 50(1) did not permit a union to deny voting rights with impunity in every candidate-selection process. Such matters may be governed by the union’s rules and may fall within the Certification Officer’s jurisdiction under section 108A(2), but no such statutory breach was established here.
5. The Certification Officer was entitled to decline to decide whether the Union’s rules required every member to belong to a branch. That issue was not defined in the case-management summary and was unnecessary to determine the issues formally before him. The Tribunal likewise declined to rule on it, while endorsing the observation that the mismatch between the rules and practice required attention.
6. The challenge to the validity of Standing Order 9 concerned only a subsidiary finding made en route to the actual decision and was not separately appealable.

• Employment Appeal Tribunal: Appeal from the Certification Officer’s decision dated 29 June 2009 dismissed. The Tribunal upheld the findings concerning the alleged Yorkshire Area Office Branch, section 50(1), the unresolved general branch-membership question, and the subsidiary status of Standing Order 9.
• Certification Officer: Found that the alleged branch did not exist as a rule-book branch, rejected the section 50(1) complaint, declined to determine whether every member had to belong to a branch, and made separate findings concerning the 30 per cent rule and sections 46(1)(a) and 47(1).