Paul Morley v UNISON The Public Service Union

A trade union rulebook is construed as a contractual constitution, in its practical union context and from the perspective of a reasonable trade union member. A complaint may be struck out where, fairly understood and taken at its highest, it is fanciful and has no real prospect of establishing a breach.

An independent scrutineer must be genuinely independent. The rule does not require the qualifications prescribed for statutory union-wide ballots, and the absence of actual improper influence does not itself establish independence.

Where a membership complaint may concern election, removal from office or disciplinary proceedings under Trade Union and Labour Relations (Consolidation) Act 1992, jurisdiction should be determined after the relevant facts and arguments have been properly addressed.

The appellant made two complaints to the Certification Officer about the 2021 election for secretary of UNISON's Lancashire branch. He alleged that the incumbent used branch email facilities to enhance her campaign and that the Regional Organiser appointed to scrutinise the ballot was not independent. The Certification Officer struck out both complaints.

He also complained that UNISON had ceased his membership shortly before the 2022 branch secretary election, preventing him from standing. The Certification Officer declined jurisdiction under section 108A of the Trade Union and Labour Relations (Consolidation) Act 1992. The central issues were whether the two strike-outs disclosed errors of law and whether the membership complaint could fall within the Certification Officer's jurisdiction.

1. The first appeal was dismissed. The Certification Officer correctly understood that the email complaint concerned an asserted increase in emails bearing the incumbent's sign-off, from which an intention to enhance her electoral profile was to be inferred. Her reasoning fairly concluded that the allegation was fanciful and had no real prospect of success. She did not impermissibly decide the complaint on its merits.

2. The rule requiring an independent scrutineer required genuine independence. It would not be enough that a person lacking independence had not actually tried to influence the election. However, the appellant had no realistic prospect of showing that the Regional Organiser was not independent of the branch merely because he was a UNISON employee with responsibility for it. The rule was not to be construed by reference to the statutory regime for union-wide elections in the Trade Union Ballots and Elections (Independent Scrutineer Qualifications) Order 1993. That regime imposed additional safeguards for particular ballots and did not govern a branch election.

3. The second appeal was allowed by concession and remitted. It was unclear on which power the Certification Officer had declined jurisdiction. The proper course was for the Certification Officer to determine the facts and hear full argument on whether there had been a breach of the membership rules and, if so, whether it related to an election or removal from office, or to disciplinary proceedings, within section 108A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992.

• Employment Appeal Tribunal: Allowed the appeal concerning jurisdiction over the membership complaint and remitted it to the Certification Officer. Dismissed the appeal against the striking out of the two 2021 election complaints.

• Certification Officer: On 13 October 2021 struck out the two election complaints. By letter dated 25 April 2022 declined to consider the membership complaint for want of jurisdiction.