Tom Simpson v Unite the Union

Apparent predetermination bias is assessed by asking whether a fair-minded and informed observer, knowing the relevant facts, would think there was a real possibility that the decision-maker had predetermined the matter. A real risk and a real possibility express the same low threshold: the chance need be real, rather than illusory.

A decision must be read fairly and as a whole. An isolated imprecise expression will not establish legal error where the decision-maker correctly directs themselves and applies the correct test in substance. The assessment remains focused on the procedure and facts of the case. A point not advanced below, including knowledge attributed to the hypothetical observer, will not ordinarily found an appellate error.

The appellant, a member of Unite, was expelled following disciplinary proceedings concerning complaints he had made against other union members. John Gillespie chaired the committees which dismissed the original complaints, initiated and oversaw an investigation into the appellant, decided that disciplinary proceedings should follow, and later chaired the disciplinary panel.

The Certification Officer rejected a complaint under Trade Union and Labour Relations (Consolidation) Act 1992 that this procedure breached Unite's rules and natural justice. On a first appeal, the EAT allowed the appeal and remitted the issue of apparent predetermination bias: [2022] EAT 154. On remission, the Certification Officer again rejected the complaint.

This second appeal concerned the applicable apparent-bias test, whether the observer should be taken to know that some unions separate disciplinary functions, and whether relevant evidence had been left out of account.

1. Appeal dismissed. The Certification Officer correctly identified and applied the remitted test: whether a fair-minded and informed observer, knowing the facts, would think there was a real possibility that Mr Gillespie had predetermined the disciplinary matter.

2. There is no substantive distinction between a real possibility and a real risk in this context. Both describe a real, rather than illusory, chance of prejudgment and do not require certainty, high probability or a conclusion on the balance of probabilities. The Certification Officer's references to real risk therefore did not misstate the law.

3. Although some passages, read alone, referred to the observer as only fair-minded or only informed, and some used less precise language, the decision had to be read fairly and as a whole. It contained a correct self-direction, repeatedly referred to the real-risk standard, and reached its conclusion on that basis. It disclosed no misapplication of the test.

4. The Certification Officer was not required to attribute to the observer knowledge that other unions separated oversight and adjudicative functions. That point had not been advanced before her. Separation was not necessary in every case, and the required inquiry concerned the particular procedure and facts before her.

5. The Certification Officer had taken account of Mr Gillespie's prior involvement and of his failure to answer or share the recusal letter. The remission did not extend to substantive allegations concerning his political affiliations or associations. The letter's existence and his response to it were relevant only as material known to the hypothetical observer. The remaining evidential matters either fell outside the remitted issue or disclosed no error in the assessment.

• Employment Appeal Tribunal: The appeal against the remitted decision of the Certification Officer was dismissed: [2025] EAT 149.

• Employment Appeal Tribunal: The appellant's first appeal was allowed. The apparent-predetermination issue was remitted to the Certification Officer: [2022] EAT 154.

• Certification Officer: The original application under Trade Union and Labour Relations (Consolidation) Act 1992 was rejected on 18 February 2021. On remission, the Certification Officer again rejected the complaint.