Evans v Prospect & Ors

A statutory decision-maker is not apparently biased merely because it is supported by, co-located with, or funded through a public body on whose council a party’s representative sits. The question remains whether a fair-minded and informed observer would find a real possibility of bias on all the facts. Any structural shortcoming may also be cured by an appeal to an independent judicial body with jurisdiction adequate for the decision under review.

Trade-union rules are construed as a membership contract in their practical context. A precautionary suspension pending investigation is distinct from a disciplinary sanction and may be authorised by the rules or necessarily implied. Conversely, an election code prohibiting use of union resources may apply before a second candidate is nominated; its purpose does not justify a contrary summary construction.

The appellant, a Prospect member and union office-holder, was suspended from office while allegations of bullying, harassment and sex discrimination were investigated. He complained to the Certification Officer that the suspension breached Prospect’s rules. He also challenged a circular in which Prospect’s President supported the re-election of its General Secretary, alleging breach of the General Secretary election code.

On 1 July 2022 the Certification Officer struck out the suspension and election-code complaints as having no reasonable prospect of success. She also declined to accept a further complaint concerning the suspension. The appellant appealed to the Employment Appeal Tribunal and alleged apparent bias arising from links between the Certification Officer, ACAS and trade unions.

The central issues were whether the strike-outs and non-acceptance were lawful, and whether the Certification Officer’s decisions were vitiated by bias.

1. Appeal allowed in part. The apparent-bias ground was dismissed. The suspension-related strike-out was upheld. The election-code complaint was remitted for fresh determination. The appeal against non-acceptance of the further suspension complaint was allowed, subject to an opportunity to show cause before it was struck out.

2. Applying the Porter v Magill test, the evidence disclosed no actual, automatic or apparent bias. The Certification Officer’s statutory independence, safeguards against ministerial direction, separate control of adjudicative functions, and the lack of any material involvement by ACAS Council members in the complaints meant that a fair-minded and informed observer would see no real possibility of bias. State appointment, public funding, co-location and professional contact with unions did not establish a cogent link to partial decision-making.

3. Even if a structural risk had arisen, an appeal to the EAT on a question of law under section 256ZA(7) of the Trade Union and Labour Relations (Consolidation) Act 1992 provided judicial control with jurisdiction adequate to the limited strike-out decision. If disputed facts made strike-out inappropriate, the EAT could set aside the decision and remit it; it could also exercise the Certification Officer’s powers under section 35 of the Employment Tribunals Act 1996.

4. The suspension from union office was precautionary, not a disciplinary sanction or suspension from membership under Appendix 1 regulation 1. The NEC’s express powers to regulate procedure and delegate disciplinary functions permitted the standing orders authorising precautionary suspension. Alternatively, that power was necessarily implied to permit a fair investigation. No finding about custom and practice was required. The complaint therefore had no reasonable prospect of success.

5. The Certification Officer erred in holding that the General Secretary election code could operate only once two candidates had been nominated. Rule 10.2(8), the prohibition on canvassing for nominations, and the purpose of preventing an unfair advantage could engage the code before that stage. Whether the President’s statement breached the code required determination on the merits and could not be summarily struck out.

6. The Certification Officer could not refuse to accept the further complaint merely because it was repetitive. A vexatious repeat complaint could be struck out under the statutory procedure, but only after the applicant had an opportunity to show cause. The EAT directed that the complaint would be struck out unless the appellant made written representations within 21 days showing why that order should not be made.

• Employment Appeal Tribunal: [2025] EAT 143. Allowed the appeal in part from the Certification Officer’s decisions of 1 July 2022.
• Certification Officer: On 1 July 2022 struck out the suspension and election-code complaints as having no reasonable prospect of success, and declined to accept a further suspension complaint.