Did the Certification Officer err by failing to consider correctly whether the disciplinary process of a Trade Union gave rise to an appearance of bias?
Yes, held the EAT in Simpson v Unite the Union.
The Apellant was a trade union member who had been expelled. He applied to the Certification Officer for a declaration under s108A Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that the process adopted was in breach of natural justice, as it gave rise to an appearance of bias by way of pre-determination.
His application was refused resulting in his further appeal to the EAT which held that the Certification Officer had erred by failing to consider and apply the relevant law when determining if the disciplinary process gave rise to an appearance of bias where the chairman of the disciplinary panel had also acted as the chairman of the committee which had commissioned and accepted a report into the Appellant’s own complaints of harassment, and then rejected the complaints and commissioned a further investigation into whether they were malicious or vexatious whilst suspending the Appellant.
He had also acted as the chairman of the committee which had accepted the recommendation that there be a disciplinary hearing and which had appointed him as chairman of the disciplinary panel. Moreover, when the Appellant had written to him and requested that he not be on the disciplinary panel, he had not replied to the letter or shared it with the other members of the panel.
Thanks to Tim Kenward of 7 Harrington Street Chambers for preparing this case summary.