A decision issued by the Employment Appeal Tribunal yesterday declared that Alec McFadden, a Unite union member and representative was unlawfully disciplined by his union. The original disciplinary proceedings gathered some media coverage in the Liverpool Echo. 

A trade union has the right to discipline its members if a member breaches a rule of the union – although the scope of what can be misconduct is constrained. If a union does not properly apply its rules to a member then, as covered previously, they may make a claim to the Certification Officer to challenge that decision. The decision in McFadden v Unite began in just such a situation.

The case began as a complaint that Mr McFadden slapped a woman’s bottom in a march attended by union members. A complaint was raised and Mr McFadden was found to have breached rule 27 of the union’s rules. He appealed through the union’s procedures but this appeal was unsuccessful. Subsequently,  Mr McFadden made a complaint to to the Certification Officer (CO). The CO determined that because the conduct complained of was not in the workplace as a representative or at an event organised by the Union whatever the truth (or not) of the allegation within the terms of the union’s rules it was not something the union could discipline him for and therefore the allegation was null and void. The CO ordered Unite to reinstate McFadden to any union positions he held prior to the suspension.

What came next is something that I have seen many an employer do when faced with a disciplinary decision they did not like: dress up the incident to look like a different allegation and pursue this case. In this new case the same incident was pursued against him but the allegations referred to different union rules., although they again made a complaint referring again to the rule under which he was prosecuted at the first time of asking. For a second time Unite found against Mr McFadden (on all grounds), and Mr McFadden again complained to the CO. This time the CO made a finding that the union was not estopped from pursuing a disciplinary case against Mr McFadden relating to the same incident it had earlier ruled upon in the earlier CO decision. It is this decision that was appealed to the EAT. It is worth noting at this point that the co’s decision was in a  preliminary hearing and a later hearing would have considered natural justice arguments so it is possible the CO would again have ruled against Unite in the final decision on broader grounds.

Res Judicata?

The central argument if the case was that the decision was res judicata. In legal terms res judicata means a decision that has already been determined and which both parties are forbidden (estopped) from pursuing. This can also apply when properly speaking an allegation could have been pursued but a party chose not to (cause of action estoppel).

A key issue in whether the union was estopped related to conflicting arguments relating to the unfair dismissal case of Christou v London Borough of Haringey [2013] in which social workers were dismissed despite having previously been disciplined for the same matters. Frustratingly, since this is an issue that has wider implications than just union disciplinary decisions the EAT declined to explore the extent to which the doctrine should apply in ‘internal’ contexts (such as the union’s local processes or indeed an employment context).

The EAT declined to pursue such an approach because whether the union’s rule book and disciplinary process was apt for the allegation of the res judicata doctrine was not directly relevant since the Certification Officer was established by law to determine complaints and this was a legal determination that did prevent Unite from revisiting the same allegation again even though the CO declared the first disciplinary finding as “null and void” and not dismissed.

Abuse of Process

On the question of the alleged breach of rule 27.1.7 (which the the rule Mr McFadden was first found to have breached) the EAT confirmed the the res judicata rule did apply.

However, on the question of the other allegations these had clearly not been considered by the CO and so could these be pursued? The EAT applied a decision of the court made almost 180 years ago, the rule in Henderson v Henderson! Briefly stated, the rule in Henderson v Henderson  is that a litigant must bring their whole case to court, a failure to do so is an abuse of process by the party. The EAT found that “[Unite] could and should have asserted that the Appellant had breached those rules in the first disciplinary proceedings” and an attempt to revive these issues after a CO determination was an improper/abuse of process. Indeed, in a rare move the EAT ordered Unite to pay costs to Mr McFadden since it had acted improperly in breaching the CO’s first order by instigating a second disciplinary.

Decisions from the CO do not often go forward to the EAT and so there are not many decisions on disciplinary actions taken by unions on their members. The decision in Mcfadden is therefore an important one that makes clear that insofar as a decision is made by the CO ruling a decision is in breach of union rules a union cannot go behind that decision and allege other infractions to try to get a better outcome unless such a possibility is expressly countenanced in the CO’s order.

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