Oliver Segal QC and Stuart Brittenden represented the Union, instructed by Victoria Phillips, Thompsons Solicitors LLP. Judgment in Kelly v Musicians’ Union  EWCA Civ 736 was handed down on Thursday 11th June 2020.
When will delay prevent a trade union from disciplining a member?
This was in issue before the Court of Appeal in Kelly v Musicians’ Union  EWCA Civ 736. In the wake of the #MeToo campaign, in 2016-2017 the Union set up a “safe space” for its members to report incidents of sexual harassment at work. A number of members raised complaints against the Appellant, which had occurred more than 28 days prior to them being reported to the Union. Disciplinary proceedings were instituted, resulting in the Appellant being expelled from the Union. His status as an Approved Contractor was also removed, although this was a separate contractual arrangement arising independently of the Rulebook and membership.
The Union’s Rulebook made the following specific provision as to when the Union was under a duty to commence a disciplinary investigation:
Where a complaint of an alleged disciplinary offence is made to the General Secretary within 28 days of the alleged offence and there appear to the General Secretary to be reasonable grounds to think that a member might be guilty of a disciplinary offence the General Secretary shall investigate whether charges are justified.
The Certification Officer (“CO”), expressing some degree of unease, upheld the Appellant’s complaint under s. 108A TULR(C)A 1992 that the Union had acted in breach of its Rules in disciplining him for offences that were reported to the General Secretary more than 28 days after they had happened. The CO issued a declaration to that effect, and various enforcement orders reinstating the Appellant’s membership as well as an enforcement order restraining the Union from using any information considered within the disciplinary process to terminate his Approved Contractor status.
The Union’s appeal to the EAT was upheld and the decision and enforcement order set aside by Soole J. The Appellant appealed to the Court of Appeal. Following a remote hearing, Singh LJ gave the lead judgment (with Floyd and Carr LJJ concurring), rejecting the appeal. The approach to be applied when construing the language of Union Rulebooks is to consider “the reasonable expectation of union members” and “common sense” [47, 49].
Materially, Singh LJ accepted that a distinction had to be drawn between whether the Union was under a duty to investigate, and whether it possessed a residual power to investigate a disciplinary offence. The existence of a prescribed duty did not necessarily negate or extinguish the Union’s power to take a step. At  Singh LJ reasoned:
… The effect of [the rule] is to impose a duty on the General Secretary to investigate whether charges are justified (“shall investigate”) where two conditions are satisfied. One condition is that there must appear to be reasonable grounds to think that a member might be guilty of a disciplinary offence. The other condition is that the complaint must be made within 28 days of the alleged offence. Where either of those conditions is not satisfied, the duty does not arise. However, the absence of a duty does not entail the absence of a power. The error into which the Certification Officer fell was to confuse the concept of a duty with the concept of a power.
This reasoning may resonate in the wider employment context (depending upon the drafting) where disciplinary rules or grievance procedures specify what appear to be time limits.
However, the extent of the Union’s power to initiate disciplinary proceedings outside of the 28-day time limit was not boundless. The rules of natural justice are engaged. As Singh LJ observed at  “… it would be irrational for the Union to launch an investigation unless it appears that there are reasonable grounds that an offence has been committed.”
Additionally, according to Singh LJ at  “there could in principle be circumstances in which the delay in the making of a complaint is so long that it would be unfair and/or irrational for the Union to investigate and/or lay a charge.” As Singh LJ observed, this was not a problem unique to trade unions. That sentiment could apply with equal force to an employer seeking to discipline an employee for an historic offence. A fair hearing may not be possible, because crucial witnesses may no longer be available or for some other reason. Everything will depend on the facts of a given case.
The CA confirmed that the Certification Officer did not have the power to restrain the Union from using the information lawfully obtained during the disciplinary process for the very different purpose of exercising its contractual power to remove a person from a list of Approved Contractors.
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