Unite the Union v Alec McfAdden

Factual and Procedural Background

The case concerns two sets of disciplinary proceedings initiated by Company A, a trade union, against the Respondent, who was the chair of a branch of Company A. The proceedings arose from an allegation that the Respondent had slapped a female member of the union on the bottom, an allegation the Respondent denied. The first disciplinary panel found misconduct under a specific rule related to workplace bullying and harassment, but this was later overturned by the Assistant Certification Officer (ACO) on the basis that the incident occurred outside the workplace and thus the rule did not apply. Company A then brought a second set of disciplinary proceedings against the Respondent under different rules of its rulebook, resulting in sanctions including barring the Respondent from holding office.

The Respondent complained to the Certification Officer (CO) that the second proceedings breached the doctrine of res judicata. The CO held that the doctrine did not apply to Company A's disciplinary processes. The Respondent appealed successfully to the Employment Appeal Tribunal (EAT), which reversed the CO's decision. Company A was granted permission to appeal to this Court, which is the subject of this opinion.

Legal Issues Presented

1. Whether the doctrine of res judicata applies to the disciplinary proceedings of a trade union.
2. Whether the decision of the Assistant Certification Officer declaring the first disciplinary proceedings null and void affects the applicability of res judicata to subsequent disciplinary proceedings.
3. Whether the Employment Appeal Tribunal erred in its reasoning by applying the doctrine of res judicata to the union’s disciplinary procedures despite stating it need not decide that issue.

Arguments of the Parties

Appellant's Arguments

• The Employment Appeal Tribunal committed a logical fallacy by effectively deciding the principal issue of whether res judicata applies to trade union disciplinary procedures, despite stating it was not deciding that issue.
• The EAT confused the stage at which disciplinary proceedings are brought by the union and the later judicial decision by the Certification Officer or Assistant Certification Officer.
• It was not the union’s obligation or opportunity to raise all charges at the stage of the ACO’s decision.

Respondent's Arguments

• The appeal is academic as the Respondent is retired and no longer wishes to be an officer of the union.
• The doctrine of cause of action estoppel and the principle in Henderson v Henderson apply analogously to trade union disciplinary proceedings.
• Trade union disciplinary proceedings are quasi-judicial, involving formal procedures such as charges, witness evidence, and cross-examination, similar in formality to professional disciplinary regimes.
• Company A, as the largest union with its own legal department, should not be permitted to bring the same factual allegation twice under different rules after failing initially due to charging under the wrong rule.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the applicability of the doctrine of res judicata to trade union disciplinary proceedings by distinguishing between independent adjudicative bodies and internal disciplinary bodies operating under contractual rules. It noted that res judicata applies presumptively where a body with statutory or equivalent jurisdiction determines legal rights, such as courts or professional regulatory bodies established by statute or Royal Charter. However, trade union disciplinary panels are internal bodies constituted by the union itself, lacking independent adjudicative authority and statutory jurisdiction.

The Court relied on prior authority distinguishing employment disciplinary procedures, which are not adjudicative but hierarchical and contractual, from judicial or quasi-judicial determinations subject to res judicata. It accepted the union’s disciplinary processes are contractual and subject to the duty to act fairly but are not amenable to the strict application of res judicata principles.

Regarding the first disciplinary proceedings, the Court noted that the Assistant Certification Officer’s declaration that those proceedings were null and void did not render his decision itself null but rather established that the union was estopped from bringing further proceedings under the same rule for the same factual allegation. However, this estoppel did not extend to proceedings under different rules. The Court found the Employment Appeal Tribunal erred in reasoning that the principle in Henderson v Henderson applied to bar the second set of proceedings without properly deciding whether res judicata applies to union disciplinary bodies.

The Court emphasized that while the union cannot unfairly bring identical proceedings twice or challenge established factual findings, it is not precluded from bringing charges under different rules if the initial charge was brought under an incorrect provision. This approach balances fairness to the member with the union’s legitimate interest in addressing serious allegations properly.

The Court also considered whether to hear the appeal despite its academic nature, concluding that the public interest in resolving the legal principles at stake warranted determination. It granted an extension of time for the Respondent’s Notice, allowing limited additional grounds to be considered, ensuring procedural fairness.

Holding and Implications

The Court ALLOWED the appeal by Company A and restored the order made by the Certification Officer.

The holding clarifies that the doctrine of res judicata does not apply to the disciplinary proceedings of a trade union, which are contractual and internal rather than judicial or quasi-judicial adjudications. While unions must act fairly and cannot repeatedly bring identical disciplinary charges or contradict prior factual findings, they are not barred from bringing charges under different rules if the initial charge was incorrectly framed. This decision directly affects the parties by overturning the Employment Appeal Tribunal’s ruling and reinstating the Certification Officer’s decision. No new precedent beyond the specific legal interpretation of res judicata’s applicability to union disciplinary procedures is established.