McFadden v Unite the Union

A declaration or enforcement order of the Certification Officer (or an Assistant Certification Officer exercising delegated powers) can give rise to an estoppel preventing a union from re‑litigating the same factual allegation in subsequent internal disciplinary proceedings.

Where a Certification Officer's declaration establishes that a particular allegation cannot be treated as misconduct under a specified rule, the union is estopped from bringing further disciplinary proceedings based on that allegation under the same rule.

Further, where the union could and should have pleaded alternative rules in the original internal proceedings, the declaration estops the union from re‑asserting those alternative rule breaches later.

The appellant, a long‑standing union member, faced two sets of internal disciplinary proceedings arising from a complaint that he touched a female member's bottom. The first proceedings concluded with an Assistant Certification Officer deciding that the proceedings were outwith the union's rules and granting a declaration and enforcement orders. The union then began a second set of proceedings based on the same factual allegation but relying on different rule breaches. The Certification Officer held that res judicata did not apply to internal disciplinary decisions. The appellant appealed to the Employment Appeal Tribunal asking whether the Assistant Certification Officer's declaration estopped the union from pursuing the second proceedings.

The central issue was whether the Assistant Certification Officer's decision could give rise to an estoppel that prevented the union from re‑bringing disciplinary charges based on the same underlying facts, including under alternative rule headigs that could and should have been pleaded earlier.

1. The appeal is allowed. The Tribunal concluded that the Assistant Certification Officer's declaration and enforcement order were capable of giving rise to an estoppel per rem judicatam and did so in this case.

2. The Assistant Certification Officer decided that the alleged incident did not fall within rule 27.1.7 and that the union had proceeded under that rule. That decision was not null or void for the purposes of estoppel. Consequently the union was estopped from bringing further disciplinary proceedings alleging breach of rule 27.1.7 based on the same factual allegation.

3. Following the Henderson v Henderson line of authority, the Tribunal held that the union was also estopped from asserting breaches of rules 27.1.1, 27.1.4 or 27.1.5 (or other rules) in respect of the same underlying facts because those points could and should have been raised in the first disciplinary proceedings.

4. The Tribunal did not decide whether the doctrine of res judicata generally applies to internal union disciplinary decisions. That question was unnecessary to resolve because the Assistant Certification Officer's declaration had the effect of a court order and thus produced estoppel effects.

5. The Tribunal declared that the union was not entitled to bring the second disciplinary proceedings predicated on the same factual allegation. The Tribunal made a costs order against the union in a modest sum as it had acted in breach of the Assistant Certification Officer's order.

• Employment Appeal Tribunal: Appeal allowed; held that the Assistant Certification Officer's declaration gave rise to an estoppel preventing the union from bringing the second disciplinary proceedings (this judgment, [2019] UKEAT 0147_19_1912).
• Certification Officer: Decision dated 4 April 2019 rejected the appellant's submission that res judicata applied to union disciplinary panels and held the union entitled to start the second proceedings (referred to in this judgment).
• Assistant Certification Officer: Decision dated 3 October 2017: declared the first disciplinary proceedings and penalties null and void and made enforcement directions restoring the appellant; that decision formed the basis of the estoppel found by the EAT (referred to in this judgment).