Employment Cases Update

McFadden v Unite the Union UKEAT/0147/19/DA

Date published: 30/12/2019

Appeal against the Certification Officer’s decision that the Respondent was entitled to have conducted a second disciplinary investigation against the Appellant. Appeal allowed.

The Appellant faced an allegation of misconduct, which he strenuously denied. Disciplinary proceedings found that there had been misconduct under the Respondent union's rule on bullying and harassment, but an Assistant Certification Officer decided that the misconduct had not taken place "in the workplace" (a requirement of the rule) and so the Respondent had acted in breach of its rules; however, the Respondent commenced a second set of disciplinary proceedings in respect of the same allegation, but alleging breach of different rules in the Respondent's rulebook. The Appellant contended that the Respondent was estopped from doing so, but the Certification Officer rejected the Appellant's submission that the decision of the disciplinary panel in the first disciplinary proceedings was an extant decision, since it had been declared to be null and void.

The EAT held that the Respondent was not entitled to bring the second disciplinary proceedings. It found that the Assistant Certification Officer's decision itself was neither null nor void nor of no effect; the effect of his decision was that the Appellant was not in breach of the rule on bullying and harassment and that the Respondent had not relied on any other rules in its rulebook. Accordingly, the appeal would be allowed, and the Respondent would be ordered to pay a modest amount in respect of the Appellant's costs, which was appropriate in the circumstances where the Respondent had acted improperly, in breach of the Assistant Certification Officer's order.

Read the full text of the judgment on BAILII or download the file by clicking the link below.