P Embery v Fire Brigades Union

A trade union rulebook is a multilateral contract, but its rules must be construed in their practical union context. The court should adopt the meaning a reasonable union member would understand, and should avoid an overly literal construction that defeats the rule’s management purpose or common sense.

A Certification Officer may strike out a complaint under Trade Union and Labour Relations (Consolidation) Act 1992 where the issue is a self-contained point of construction and the complaint has no reasonable prospect of success or is misconceived. A hearing is not required where the material needed to determine that issue is available, although strike-out is inappropriate where crucial facts, including relevant custom and practice, remain disputed.

The appellant, a long-standing member of the Fire Brigades Union, was the subject of an internal disciplinary investigation. He disputed the interpretation of a union rule and contended that, after the disciplinary sub-committee rejected his interpretation, rule C13 required the Union’s Standing Orders Committee to adjudicate on the continuing dispute.

He applied to the Certification Officer under section 108A of the Trade Union and Labour Relations (Consolidation) Act 1992. The Certification Officer struck out that complaint under section 256ZA, holding that it had no reasonable prospect of success and was misconceived. The appellant appealed on questions of law, challenging both the procedure adopted and the construction of rule C13.

1. Appeal dismissed unanimously. The Certification Officer made no error of law in striking out the complaint under section 256ZA of the Trade Union and Labour Relations (Consolidation) Act 1992.
2. A trade union rulebook is a contract between the members, but its provisions are construed in context. Applying the approach in Kelly v The Musicians Union [2020] EWCA Civ 736, the question was how a reasonable union member would understand rule C13, consistently with common sense and the Union’s constitutional and management arrangements.
3. Rule C13 did not give a member a right to require an adjudication by the Standing Orders Committee merely because that member remained dissatisfied with the Executive Council’s or a sub-committee’s determination. In the phrase “satisfactorily settled by”, “settled” meant decided or determined by the Executive Council or its sub-committee. The Standing Orders Committee was empowered to adjudicate only where that body was unable to resolve the issue to its own satisfaction.
4. The contrary construction was overly literal. It would make agreement by all parties necessary in disputes arising in disciplinary proceedings and would, in substance, create an automatic appeal from the Executive Council or its sub-committee. That was not a sensible reading of the rule. The different word “adjudicate” did not alter this conclusion; it reflected the limited contingency in which the Standing Orders Committee might be asked to decide an issue.
5. The complaint raised a self-contained construction issue. The Certification Officer had afforded the appellant opportunities to make further representations. No disputed custom or practice, or other factual issue, required a hearing. Since the Executive Council’s disciplinary sub-committee had determined the interpretive issue, rule C13 had not been breached in the manner alleged. The complaint therefore had no reasonable prospect of success and was misconceived.

• Employment Appeal Tribunal: unanimously dismissed the appeal from the Certification Officer’s decision: [2023] EAT 134.
• Certification Officer: on 17 November 2021, struck out the complaint concerning rule C13 under section 256ZA of the Trade Union and Labour Relations (Consolidation) Act 1992, as having no reasonable prospect of success and/or being misconceived.