Dr Vikas Chandra v The University and College Union

Where a trade-union member has taken all reasonable steps to use the union’s internal complaints procedure, section 108B(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 prevents the Certification Officer from refusing to accept the application.

The procedural power in section 256ZA(6) permits supplementary procedural provision about strike-out. It does not permit a merits-based process inconsistent with section 256ZA(1) and (4). An application cannot effectively be struck out as not arguable, without a show-cause notice or an opportunity to be heard. The Certification Officer may nevertheless deal promptly with matters outside jurisdiction or apparently out of time.

The appellant, a former branch chair of the respondent trade union, made 12 applications to the Certification Officer alleging breaches of the union’s rules in disciplinary proceedings brought against him. The internal disciplinary complaints had been upheld and his appeal within the union had been dismissed.

An officer acting under delegated authority concluded that none of the applications was arguable and that they could not be accepted. The Assistant Certification Officer maintained that decision. The appellant appealed to the Employment Appeal Tribunal. Permission had been granted on nine grounds, including umbrella grounds challenging the lawfulness of refusing to accept applications on their arguable merits.

The central issue was whether the Certification Officer could use procedural powers to refuse to accept applications as not arguable, despite the statutory regime for internal procedures and strike-out.

1. Appeal allowed. It was common ground that the decision was neither a refusal under section 108B nor a strike-out under section 256ZA(1). The relevant internal procedures had been exhausted.

2. Section 108B(1) permits refusal to accept an application unless the Certification Officer is satisfied that the applicant has taken all reasonable steps to resolve the claim through the union’s internal procedure. Read literally and in context, once that condition is satisfied the Certification Officer cannot refuse to accept the application. The requirements in section 108B(2), including an opportunity for both parties to be heard, then apply.

3. Section 256ZA(1) supplies the power to strike out a scandalous, vexatious, hopeless or misconceived application. A show-cause notice is required by section 256ZA(4) before such an order is made. Section 256ZA(6) means that the procedural provisions concerning strike-out are not exhaustive, but it does not authorise a procedure inconsistent with section 256ZA(1).

4. The Certification Officer therefore lacked power to adopt a procedure which effectively struck out the applications as having no reasonable prospect of success, described as not arguable, without a show-cause notice or an opportunity to be heard. That procedure was inconsistent with section 256ZA(4) and may also have exceeded the procedural power in section 256(1).

5. The Tribunal did not determine whether any application would properly have been struck out, or whether a mini-trial had occurred. The applications were remitted to the Certification Officer. The separate numbered grounds concerning the merits of the disciplinary proceedings were not determined.

• Employment Appeal Tribunal: allowed the appeal from the Certification Officer’s decisions of about 13 March 2023 refusing to accept the applications, and remitted them to the Certification Officer.
• Certification Officer: refused to accept 12 applications alleging breaches of trade-union rules in disciplinary proceedings, on the basis that none was arguable.