On 19 February 2021, the Court of Appeal handed down judgment in Unite the Union v McFadden.
Mr McFadden had been found guilty of sexual harassment in union disciplinary proceedings, but the Certification Officer held that the union had charged him under the wrong part of the union’s rule book. When the union again found him guilty under the correct rules, Mr McFadden complained that the union should not have been permitted to hold a second hearing because it was estopped by the doctrine of res judicata. The CO rejected that argument. The EAT allowed an appeal on a different basis (that whether or not res judicata applied to the first union disciplinary proceedings, it did apply to the first CO hearing and therefore the union could not hold a second disciplinary process arising out of the same facts).
In upholding Unite’s appeal against the EAT’s decision, which it described as a “logical fallacy”, the Court of Appeal went on to determine the original issue of whether res judicata applied to union disciplinary proceedings, commenting that “it would clearly be in the public interest in the circumstances of the present case to determine the important issue of principle which has arisen. It will affect not only the powers of Unite but also trade unions generally and will affect the rights of their members. It may potentially affect the wider public, for example complainants”.
The Court of Appeal rejected Mr McFadden’s argument that union disciplinary proceedings were analogous to decisions of professional regulatory bodies, holding rather that, “Although the analogy with the employment relationship is not exact, I accept Mr Segal’s submission that the relevant principles were set out by Elias LJ in Christou v London Borough of Haringey [2013] EWCA Civ 178; [2014] QB 131”, namely that the critical distinction was between: ”a body which is independent of the parties and is invested by law with the power to determine an issue which establishes the existence of a legal right; and other bodies, which are not”.
On the issue of the wider public interest, the Court of Appeal concluded by commenting that “it is important not to lose sight of the important public interest in having serious allegations, such as allegations of sexual harassment, properly dealt with. Unions are not to be prevented from dealing with those allegations properly and fairly only because they made a mistake in the initial charging decision. That would not serve the interests of other union members, such as the complainant in the present case, or the interests of the wider public”.
Oliver Segal QC acted for Unite the Union.
