The Musicians' Union v Kelly

A trade union rule requiring the General Secretary to investigate where a complaint is made within a stated period and there are reasonable grounds for believing an offence may have been committed creates a mandatory duty in those circumstances. It does not, without express words or necessary implication, prohibit an investigation of a late complaint.

Where the rulebook otherwise requires members to report disciplinary offences without time limit and authorises discipline for serious concealed misconduct, a term may be implied by business efficacy and obviousness. The implied term gives the General Secretary a discretion to investigate a late complaint where reasonable grounds exist.

The Musicians' Union appealed from a decision of the Certification Officer dated 1 February 2019. The Officer had upheld Mr Kelly's complaint under section 108A of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Officer held that Rule XVII.4 barred disciplinary proceedings where the alleged misconduct had occurred more than 28 days before the complaint. She set aside Mr Kelly's ten-year expulsion and made related enforcement orders. The central issue was whether Rule XVII.4 imposed an absolute 28-day limitation, or instead required investigation of timely complaints while permitting a discretionary investigation of late complaints.

1. Appeal allowed. Rule XVII.4 imposed a mandatory obligation on the General Secretary to investigate when both stated conditions were satisfied: a complaint made within 28 days and reasonable grounds to think that a member might be guilty of a disciplinary offence. It was not merely advisory.

2. The rule did not expressly prohibit an investigation in other circumstances. A prohibition was necessarily implied where there were no reasonable grounds to think that a disciplinary offence might have been committed, since investigation would then have no rational basis.

3. No corresponding prohibition was implied merely because an otherwise well-founded complaint was made more than 28 days after the alleged offence. Read with the rulebook as a whole, Rule XVII.4 required an implied complementary term: where the complaint was not made within 28 days but reasonable grounds existed, the General Secretary may investigate whether charges are justified.

4. That implication was compelled by business efficacy and obviousness. Members were required to report disciplinary offences without a time limit, and Rule XVII.2 authorised disciplinary action for serious offences, including misconduct likely to be concealed. An interpretation conferring immunity after 29 days would be inconsistent with those provisions, common sense, and the Union's objects. It would also allow an offending member to benefit from failing to report their own misconduct.

5. The Certification Officer's decision and the consequential enforcement order under sections 108A and 108B of the Trade Union and Labour Relations (Consolidation) Act 1992 were set aside in full. Although unnecessary to the result, the EAT held that removal of approved-contractor status as a disciplinary sanction could fall within the Officer's jurisdiction, but the Officer could not restrain termination of the separate contractor agreement in accordance with its terms.

• Employment Appeal Tribunal: allowed the Union's appeal and set aside the Certification Officer's decision of 1 February 2019 and the consequential enforcement order.
• Certification Officer: upheld Mr Kelly's complaint under section 108A of the Trade Union and Labour Relations (Consolidation) Act 1992, holding that the Union rules barred disciplinary proceedings on complaints made more than 28 days after the alleged offence.