Tom Simpson v Unite the Union

The Employment Appeal Tribunal held that the Certification Officer erred in law by failing to apply the correct legal test for apparent predetermination when assessing whether the disciplinary process gave rise to an appearance of bias. The decision engages Rule 27 and Rule 27.2 of the Unite rule book and the Certification Officer’s jurisdiction under section 108A TULR(C)A. The error arose because the Certification Officer did not properly direct herself to whether a fair-minded and informed observer, knowing the facts, would conclude there was a real possibility that the chair had predetermined the outcome.

The EAT identified material factual involvement by the chair (Mr Gillespie) at multiple stages — consideration of the first investigation, instruction of a second investigation, decision to charge and then chairing the disciplinary panel — which required application of the apparent predetermination test. The Certification Officer considered perceived bias but applied an incomplete formulation of the test and therefore reached a legally flawed conclusion.

Background and nature of the application:

• The appellant applied to the Certification Officer under section 108A TULR(C)A for a declaration that Unite the Union breached its rules (in particular Rule 27 and Rule 27.2) and the principles of natural justice in disciplinary proceedings that led to his expulsion.
• The Certification Officer refused the application by decision dated 18 February 2021.

Relevant facts and procedural history:

• The Union’s Rules (2018) and Executive Council directions govern disciplinary proceedings (Rule 27; Rule 27.2; Rule 27.3). The Certification Officer held a multi-day hearing; evidence included investigation reports, minutes and witness statements.
• The factual sequence included an initial investigation by a regional officer, consideration by the Scottish Finance and General Purposes Committee (F&GP) chaired by Mr Gillespie which rejected the original complaint and instructed a further investigation, the second investigation by a Regional Coordinating Officer, the F&GP’s decision to accept that second report and to bring charges, and Mr Gillespie chairing the three-person disciplinary panel that expelled the appellant. The appellant had asked Mr Gillespie to recuse himself; that request was not answered or shared with the panel.
• The appellant appealed the Certification Officer’s decision to the Employment Appeal Tribunal; HHJ Shanks directed that arguable points of law be listed for directions and the appeal proceeded.

Issues for the Tribunal:

• Whether the Certification Officer applied the correct legal test for apparent bias/predetermination when deciding whether the process was compatible with natural justice.
• Whether Mr Gillespie’s involvement at multiple stages gave rise to a real possibility that he had predetermined the matter.

Reasoning and decision:

• The EAT explained the governing legal standard for apparent predetermination as being whether a fair-minded and informed observer, knowing the facts, would consider there was a real possibility that the decision-maker had predetermined the issue (drawing on authorities discussed in the judgment).
• The Certification Officer had adopted an incomplete formulation of that test, failing to focus on the informed element and failing properly to analyse apparent predetermination arising from participation at different stages of the process (investigation oversight, decision to charge, suspension and then chairing the hearing).
• Because the Certification Officer did not direct herself correctly to that question, the EAT concluded she erred in law. The EAT requested submissions on disposal, noting possibilities including substitution, determination if the parties agree, or remittal to the Certification Officer.

Wider implications: The judgment emphasises that a Certification Officer must apply the correct apparent bias / predetermination test and carefully assess cumulative involvement of decision‑makers in union disciplinary processes against the Rule 27.2 requirement to act in accordance with the principles of natural justice.

Appeal allowed. The EAT held that the Certification Officer erred in law by failing to apply the correct test for apparent predetermination (the fair‑minded and informed observer test) when assessing whether the chair's repeated involvement in investigatory and decision-making stages produced a real possibility of predetermination. Disposal was left pending and the parties were asked to make submissions on the appropriate remedy (substitution, agreement determination or remittal).

The Certification Officer refused the appellant's application by decision dated 18 February 2021. The appellant lodged a Notice of Appeal treated as received by the EAT on 19 March 2021. HHJ Shanks (Order sealed 14 July 2021) directed a preliminary hearing, which was listed on 30 September 2021 for directions before the full appeal proceeded to the EAT.