Tom Simpson v Unite the Union

A trade union disciplinary process must comply with natural justice where the union rules expressly require this. A process permitted by the rules may nevertheless create apparent bias through predetermination.

The question is whether a fair-minded and informed observer, knowing the relevant facts, would consider there to be a real possibility that the decision-maker had predetermined the disciplinary matter. The decision-maker’s involvement must be assessed cumulatively, including participation in decisions to initiate an investigation, bring charges and determine the charge.

The appellant, a union member and branch secretary, made complaints about other members. Following an investigation, the Scottish Finance and General Purposes Committee rejected those complaints and decided that there might be a basis to investigate whether his complaints were malicious or vexatious.

Mr Gillespie chaired that committee at several stages. He later chaired the disciplinary panel which upheld charges against the appellant and expelled him from the union. The appellant’s internal appeal failed.

The Certification Officer refused an application under Trade Union and Labour Relations (Consolidation) Act 1992, holding that the process was permitted by the rules and did not create bias. The appeal concerned whether the Certification Officer had failed to address apparent bias arising from predetermination.

1. The Employment Appeal Tribunal held that the Certification Officer erred in law. Her conclusion that the committee’s role was permitted by the rules did not answer whether the particular process complied with natural justice.

2. Rule 27.2 expressly required disciplinary hearings to be fair and conducted in accordance with natural justice. A trade union is a private body and cannot be expected to reproduce the degree of institutional separation found in professional regulation. Nevertheless, its rules and directions had to be interpreted and applied consistently with natural justice. Clear words would be required to exclude a component of natural justice, and there were none.

3. The relevant issue was apparent predetermination. The correct inquiry was whether a fair-minded and informed observer, knowing the facts, would think there was a real possibility that Mr Gillespie had predetermined the matter, or would consider there was a real risk that he did not approach the disciplinary hearing with an open mind. The Certification Officer had addressed apparent bias only when considering separate allegations concerning associations. She had not directed herself to that issue in deciding the primary complaint.

4. The observer’s relevant knowledge included the cumulative sequence of Mr Gillespie’s involvement: chairing the committee which dismissed the appellant’s original complaints, decided that there was something amiss and ordered investigation and suspension; chairing the committee which decided to charge him; declining to answer or disclose the recusal request; and chairing the panel which expelled him. The EAT did not itself decide whether that test was satisfied. It sought submissions on whether to substitute a decision, determine the matter by agreement, or remit it to the Certification Officer.

• Employment Appeal Tribunal: Held that the Certification Officer had erred in law by failing to address apparent bias by predetermination under the correct test.
• Certification Officer: By a decision dated 18 February 2021, refused the appellant’s application for a declaration of breach of the union rules and natural justice.
• Union internal appeal: The Executive Council sub-committee dismissed the appeal against expulsion.