McFadden v Unite the Union

A declaration and enforcement order of the Certification Officer, enforceable as a court declaration or order, may found an estoppel per rem judicatam. Its effect depends upon what the Certification Officer actually decided, rather than upon the fact that the union’s earlier disciplinary proceedings were declared null and void.

Where the decision establishes that a member was not in breach of a specified rule on a particular allegation, the union is estopped from recharging that allegation under that rule. Applying the Henderson v Henderson principle, it is also estopped from relying on other rules which it could and should have invoked in the first proceedings, unless the earlier order expressly preserves that course.

The appellant, a trade-union member and office-holder, was disciplined after an allegation that he touched a fellow member’s bottom at a restaurant event. The first proceedings proceeded under rule 27.1.7 of the union rulebook. An Assistant Certification Officer held that the rule and the relevant policy did not apply, declared the proceedings and penalties null and void, and ordered restoration to office.

The union then commenced fresh proceedings on the same factual allegation under rules 27.1.1, 27.1.4 and 27.1.5. The Certification Officer held that res judicata did not apply to the union’s internal disciplinary process and that the earlier nullity prevented any estoppel. The member appealed. The central issue was whether the Assistant Certification Officer’s decision nevertheless precluded the second proceedings.

1. Appeal allowed. The Certification Officer erred in holding that the union could bring the second disciplinary proceedings. The Employment Appeal Tribunal declared that the union was not entitled to do so.

2. The Tribunal did not decide the wider question whether res judicata applies to decisions made within a union’s own disciplinary procedure. The decisions of the original disciplinary and appeal panels could not found an estoppel because the Assistant Certification Officer had overturned them.

3. However, the Assistant Certification Officer’s declaration and enforcement order, made under the Trade Union and Labour Relations (Consolidation) Act 1992, could be relied upon or enforced as a court declaration or order. It was therefore capable of giving rise to an estoppel per rem judicatam.

4. The declaration that the first proceedings were null and void did not nullify the Assistant Certification Officer’s own decision. Its effect was that the member was not in breach of rule 27.1.7 on the allegation concerned, and that no other rule had been relied upon. The union was consequently estopped from reasserting the same allegation under rule 27.1.7.

5. Following the Henderson v Henderson line of authority, the union was also estopped from alleging breaches of rules 27.1.1, 27.1.4 or 27.1.5, or any other rule, arising from that allegation. Those grounds could and should have been raised in the first proceedings. The conclusion would have differed had the Assistant Certification Officer expressly permitted further proceedings on different rules, but no such permission was given.

6. The restoration order reinforced that conclusion. It did not prevent suspension or removal following a fresh and separate allegation, but the union breached it by suspending and removing the member through proceedings based on the same underlying allegation. An order, including a modest costs order against the union, was made accordingly.

• Employment Appeal Tribunal: Allowed the appeal from the Certification Officer’s decision of 4 April 2019 and declared that the union was not entitled to commence the second disciplinary proceedings.
• Certification Officer: Held that res judicata did not apply to the union’s disciplinary procedure and that the prior declaration of nullity prevented an estoppel.
• Assistant Certification Officer: Declared the first disciplinary proceedings and penalties void and ordered remedial steps under the Trade Union and Labour Relations (Consolidation) Act 1992.