Dooley v The Union of Construction Allied Trades And Technicians (UCATT)

Apparent bias in a trade union disciplinary process must be assessed contextually by applying the fair-minded and informed observer test to all the circumstances. The fact that the union's executive has previously been criticised by, or made adverse decisions concerning, the member does not itself require automatic disqualification.

Where the rules vest disciplinary jurisdiction in the executive, that is a relevant circumstance. The Certification Officer may intervene for breach of rules where a disciplinary finding has no evidential basis, but may not reweigh relevant and credible evidence. A union may treat criticism as conduct against its interests only by reference to its nature and context, rather than criticism alone.

The appellant, a former UCATT regional officer, was expelled after making a public speech which used abusive language about the union hierarchy. The executive council found that his conduct was contrary to the union's interests under Rule 25(1)(i), and the general council dismissed his internal appeal.

The Certification Officer rejected his challenge to the expulsion. The appellant appealed on questions of law under Trade Union and Labour Relations (Consolidation) Act 1992, section 108C. The remaining grounds alleged automatic or apparent bias by the executive and a misconstruction of the rules, said to be incompatible with articles 10 and 11 of the Convention.

The central issues were whether the disciplinary bodies were disqualified by bias and whether the Certification Officer had erred in finding evidence capable of supporting the disciplinary decision.

1. Appeal dismissed. None of the three remaining grounds disclosed an error of law by the Certification Officer.
2. Automatic disqualification did not arise. The authorities on a judge's financial interest or involvement with a party to litigation did not provide a useful parallel with executive-council members deciding a charge against a union member. Support for another general-secretary candidate neither made that candidate a party to litigation nor gave members a financial interest in the charge.
3. The Certification Officer correctly applied the apparent-bias test in Porter v Magill. The relevant question was whether a fair-minded and informed observer, considering all the circumstances, would see a real possibility of bias. It was relevant that Rules 25 and 26 vested disciplinary responsibility in the executive council. Natural justice in a domestic trade-union jurisdiction is context-sensitive. The Certification Officer was not required to treat Rule 21.14 as requiring delegation to a different body. His conclusion that there was no apparent bias was open to him, particularly since he had rejected the factual allegation of conspiracy or a hidden agenda.
4. Under section 108A, the Certification Officer could address a disciplinary finding unsupported by evidence, but could not reweigh evidence as in an unfair-dismissal claim. There was relevant and credible evidence from which the executive council could conclude that the public speech, in its language and setting, was against the union's interests under Rule 25(1)(i).
5. The decision did not treat mere public criticism of the leadership as disciplinary misconduct. It rested on the nature and context of the speech. The Certification Officer therefore properly determined that there had been no breach of the union rules, and there was no separate error arising from articles 10 or 11 of the Convention.

• Employment Appeal Tribunal: dismissed the appeal on questions of law from the Certification Officer's decisions of 9 July 2012.
• Certification Officer: rejected the application challenging the appellant's expulsion in “Dooley 3”; in a separate application, “Dooley 2”, declared the exclusion of the appellant and another candidate from the 2011 general-secretary election unlawful but made no order requiring a fresh election.