Unite the Union v Alec McfAdden

The doctrine of res judicata does not apply to disciplinary proceedings conducted by a trade union under its rulebook. Such proceedings are contractual and hierarchical, rather than adjudication by an independent body invested by law with jurisdiction to determine legal rights.

The result does not permit unfair repeated proceedings. The duty to act fairly prevents a union from bringing exactly the same charge again after dismissal or reopening a prior finding of fact. A union may, however, bring fresh charges under the correct rules where earlier proceedings failed because the wrong rule was used, provided the process remains fair.

Unite brought two disciplinary proceedings against Alec McFadden arising from the same allegation. The first panel found misconduct under rule 27.1.7, but the Assistant Certification Officer later held that rule inapplicable because the incident was outside the workplace and declared the proceedings null and void.

Unite then brought proceedings under rules 27.1.1, 27.1.4 and 27.1.5. The Certification Officer held that res judicata did not apply to trade-union disciplinary proceedings. The Employment Appeal Tribunal, in UKEAT/0147/19/DA, allowed Mr McFadden’s appeal, relying on the effect of the Assistant Certification Officer’s decision. The central issue before the Court of Appeal was whether res judicata applied to internal trade-union disciplinary proceedings.

1. The appeal was academic on its facts, but the Court exercised its narrow discretion to hear it because the issue was of public importance, affected trade unions and their members, and was fully argued. The principles concerning academic appeals were drawn from Rehoune v London Borough of Islington [2019] EWCA Civ 2142, R v Secretary of State for the Home Department ex parte Salem [1999] 1 AC 450 (HL) and Hutcheson v Popdog Ltd [2012] 1 WLR 782.
2. The EAT fell into a logical error. The fact that an Assistant Certification Officer is subject to res judicata did not mean that the union’s disciplinary panels were subject to it. The union had no opportunity or obligation to raise alternative charges before the Assistant Certification Officer.
3. Res judicata is a collective expression covering cause of action estoppel, issue estoppel, the Henderson v Henderson principle and the wider rule against abusive proceedings. Cause of action estoppel is generally absolute, while the Henderson principle requires a broad, merits-based assessment: Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; Johnson v Gore-Wood & Co [2002] 2 AC 1.
4. The doctrine applies presumptively to courts and independent bodies invested by law with jurisdiction to determine issues establishing legal rights. It can therefore apply outside traditional courts, as in planning adjudication and professional regulation: Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273; R (Coke-Wallis) v Institute of Chartered Accountants in England and Wales [2011] UKSC 1.
5. A trade union’s disciplinary process is different. The rulebook is a multilateral contract and the union exercises hierarchical disciplinary powers. It is not an independent adjudicator of the member’s legal rights. The analysis in Christou v London Borough of Haringey [2013] EWCA Civ 178 applied. Professional disciplinary authorities and the statement in Burn v National Amalgamated Labourers’ Union of Great Britain and Ireland [1920] 2 Ch 364 did not establish otherwise.
6. The duty to act fairly remains. It would be unfair and unlawful to repeat exactly the same dismissed proceedings or to contradict a previous finding of fact. It was not unfair here to bring charges under the correct rules, because the first proceedings failed through use of the wrong rule and the factual findings were not inconsistent.
7. The application to extend time for the Respondent’s Notice was granted under the three-stage approach in Salford Estates (No 2) Ltd v Altomart Ltd [2014] EWCA Civ 1408 and Denton v TH White Ltd [2014] EWCA Civ 906. The appeal was allowed and the Certification Officer’s order restored. The Court left open whether the Assistant Certification Officer had power under sections 108A and 108B of the Trade Union and Labour Relations (Consolidation) Act 1992 to declare the first proceedings null and void.

1. Court of Appeal (Civil Division) allowed Unite’s appeal and restored the Certification Officer’s order: [2021] EWCA Civ 199.
2. Employment Appeal Tribunal allowed Mr McFadden’s appeal against the Certification Officer’s decision, relying on the effect of the Assistant Certification Officer’s determination: UKEAT/0147/19/DA.
3. Certification Officer held that res judicata did not apply to Unite’s disciplinary proceedings and rejected the complaint concerning the second proceedings.