Henderson v GMB (Certification Officer)

A trade union member is unreasonably excluded from candidature where the union uses a mistaken interpretation of its election rules to impede efforts to obtain nominations. A complaint to the Certification Officer must be read sensibly and realistically in the context of the facts relied on, particularly where the member was unrepresented. It must not be confined by an unduly technical formulation that deprives the real grievance of effect.

Misconduct by the union is not excused by the member’s motives, previous hostility towards the union, or uncertainty whether the member would ultimately have secured enough nominations. Those matters may bear on remedy, but not on whether there was a breach of Trade Union and Labour Relations (Consolidation) Act 1992 section 47.

The appellant sought nomination as a candidate for General Secretary and Treasurer of the GMB. Before he obtained the required 30 branch nominations, the Union treated a branch newsletter stating that he intended to seek nomination as a breach of by-law 13. It suspended and disciplined two branch officials who had circulated it.

The Union later accepted that by-law 13 applied only to candidates, not potential nominees, and allowed the officials’ appeals. The Certification Officer nevertheless dismissed the appellant’s complaint under Trade Union and Labour Relations (Consolidation) Act 1992 section 47. He construed it as challenging the by-law itself rather than its erroneous application, and refused a late amendment intended to clarify the point.

The central issue on appeal was whether the Certification Officer had failed to determine the appellant’s true complaint of unlawful interference with his attempt to obtain nominations.

1. Appeal allowed. The Certification Officer’s decision was set aside. Complaint 1, read sensibly and in its factual context, alleged that the Union had misinterpreted and used by-law 13 to repress the appellant’s attempt to obtain nominations. It was not confined to an abstract challenge to the by-law’s correct construction.

2. By-law 13 applied only after a person had become a candidate by receiving 30 nominations. It did not prevent a potential nominee, or a branch, from informing members that the person intended to seek nomination. The Union’s contrary treatment of the branch newsletter was therefore wrong. Its suspension and disciplinary treatment of the branch officials compounded the interference with the appellant’s campaign.

3. That conduct unreasonably excluded the appellant from candidature, contrary to section 47(1) of the Trade Union and Labour Relations (Consolidation) Act 1992. It also breached the Union’s rule in relation to election to office, within section 108A. It was irrelevant to liability that the appellant might not ultimately have obtained 30 nominations, lacked contact details, or was hostile to the Union’s leadership. Such matters could bear on remedy. Only bad faith amounting to abuse of process could justify summary rejection of an otherwise valid complaint.

4. The proposed amendment was unnecessary because the existing complaint already bore the intended meaning. If it had been necessary, fairness required its allowance: it introduced neither new facts nor a new cause of action, and the Union had long been on notice of the case.

5. The Tribunal made declarations of breach under sections 55(2) and 108B(2), and specified the remedial steps already taken by the Union. It declined to annul and rerun the election. The result had been announced over 15 months earlier and the evidence did not show that the appellant was likely to have secured sufficient nominations.

• Employment Appeal Tribunal: allowed the appeal, set aside the Certification Officer’s decision, and made declarations of breach under the Trade Union and Labour Relations (Consolidation) Act 1992.
• Certification Officer: dismissed complaint 1 in a written decision issued on 22 March 2016 and refused a late amendment to that complaint.