Jason Braier Profile picture
Oct 13, 2022 15 tweets 6 min read Read on X
1/ Simpson v Unite: Certification officer erred when considering issues of natural justice in respect of a s.108A declaration application for breach of Union rules, by not directing herself correctly on the fair-minded & informed observer test.
bailii.org/uk/cases/UKEAT…
#ukemplaw
2/ S appealed a certification officer's refusal to declare that he had been disciplined in breach of Unite's rules. S's complaint was a hearing officer, G, chaired the committee which raised the concerns, initiated investigations, suspended S & decided on holding a disciplinary.
3/ S argued this was a breach of natural justice.

The relevant Unite rules include Rule 27, which lays out the circumstances in which disciplinary hearings are constituted and how they are to be heard. A direction of the Exec Council provides guidance on their application.
4/ The facts of S's case are, in brief, that he made complaints against a couple of colleagues. Those complaints weren't upheld, but the investigator considered they were made vexatiously. That was then investigated & ultimately found (in absentia) against S.
5/ S's application before the certification officer was brought under s.108A TULR(C)A, which allows an application for a declaration that there has been a breach of the rules of a trade union relating to disciplinary proceedings.
6/ The certification officer found the disciplinary process to have been undertaken within the rules, noting that the chair of the disciplinary committee (the focus of S's complaint) didn't raise the initial concerns or undertake the investigation.
7/ The Certification Officer also gave short shrift to S's arguments of bias resulting from the chair being affiliated to organisations linked to Unite to which the investigator & some of those S had complained about were also affiliated.
8/ The EAT upheld the Certification Officer's decision.
HHJ Tayler noted S's natural justice argument focused on the right to be heard by an unbiased tribunal, & that the bias concerned here was that of prejudgment.
9/ The EAT set out the relevant test for apparent predetermination - that of whether the fair-minded & informed observer would think there to be a real possibility of predetermination by the decision-maker (with that observer's attributed defined by Lord Hope in Helow).
10/ HHJ Tayler warned against the temptation to analogise the level of impartiality required of an internal disciplinary officer with that of a judge in criminal or civil litigation, noting internal procedure can't be expected to be as fastidious as legal proceedings.
11/ The EAT noted cases in which the courts had held there to be apparent bias where there was involvement of the individual or the organisation he/she chaired at multiple stages of a disciplinary process.
12/ The EAT distinguished public regulatory bodies from the TU acting as a private body, holding this relevant to the degree of independence required. However, natural justice still applies & efforts should be made for some degree of separation even if all involved are TU members
13/ Here, the EAT was concerned by how many stages of the process in which G had been involved, & also that when asked by letter by S to recuse himself he neither replied nor told other committee members about the request, but then chaired the disciplinary which expelled S
14/ The certification officer hadn't directed herself properly on the fair-minded & informed observer test applicable to the complaint of whether it was in breach of natural justice for G to be involved at so many stages of the process & then to chair the disciplinary panel.
15/ She had thus erred in law in her decision, and the EAT invited submissions on disposal, which will be the subject of a subsequent judgment.

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More from @JasonBraier

Apr 17
🧵SSBT v Mercer: Supreme Court issues declaration of incompatibility re the lack of protection from sanction short of dismissal for workers taking part in strike action. The current position breaches Art 11 ECHR.

#ukemplawsupremecourt.uk/cases/docs/uks…
2/ M was a support worker in the care sector & a UNISON workplace rep, who planned & participated in a lawful strike at her workplace. She was suspended, receiving normal pay but no overtime. Suspension removed her from the workplace during the period of industrial action.
3/ M was also given a first written warning, though that was overturned on appeal.

M brought an ET claim reliant on s.146 TULR(C)A, which provides protection against detriments for taking part in trade union activities. The statutory provisions are below: Image
Read 26 tweets
Apr 16
🧵 R (TTT) v Michaela Community Schools Trust - High Ct finds it was neither a breach of Art 9 nor indirectly discriminatory for the school to prohibit prayer rituals in response to Muslim pupils seeking to pray during their lunch break.

#ukemplawjudiciary.uk/wp-content/upl…
2/ The facts of this case will be familiar. Michaela is the school run by Katherine Birbalsingh, which has superb results but some incredibly strict rules & practices, including restricting discussion topics & limiting break time socialisation to groups of 4.
Image
Image
3/ The school, which is 50% Muslim, places considerable stock not only in its disciplinary regime, but also in what it calls its Team Ethos by which it seeks 'aggressively' to promote integration and to disrupt separation. Image
Read 25 tweets
Feb 26
🧵Mathur v HMRC: UT (Tax & Chancery) decides to broadly construe s.401 ITEPA so that a settlement including for claims re dismissal but also re unrelated pre-termination discrim is taxable where the trigger for bringing the claim is dismissal.

#ukemplawbailii.org/uk/cases/UKUT/…
2/ M worked for Deutsche Bank. Her employment was ended when the bank entered settlement with the New York State Dept of Financial Services re manipulation of interbank offered rates. DFS ordered the bank to terminate 7 employees, including M, said to be complicit in misconduct.
3/ She was offered c.£80k in a draft settlement agreement for that termination but declined to accept. Instead she brought ET proceedings for an equal pay claim, harassment, direct sex discrim, victimisation, s.47B & s.103A claims & ordinary unfair dismissal.
Read 18 tweets
Nov 29, 2023
🧵The Supreme Court's judgment in Tui Ltd v Griffiths is one of those rare non-employment law cases that all employment lawyers (& all other civil practitioners) really must read.
It's about whether you can impugn a witness without putting the point in XX.
supremecourt.uk/cases/docs/uks…
2/ The case concerned the court's treatment of an expert report prayed in aid of a claim by Mr Griffiths for the serious stomach upset & longer term stomach problems he suffered following an all-inclusive Tui package holiday at a Turkish resort.
3/ Mr G relied on an expert report from a microbiologist, Prof P. Tui didn't rely on any expert report (they sought unsuccessfully to apply to rely on one at too late a stage) & called no witnesses to give evidence. They didn't require Prof P to attend court to be cross-examined.
Read 11 tweets
Jul 26, 2023
🧵Garcha-Singh v BA: It wasn't unfair for BA to repeatedly extend the termination date in a medical incapacity dismissal - it was to G's advantage. There was also no need to provide an appeal against the final refusal to extend that date.

#ukemplawassets.publishing.service.gov.uk/media/64c0d977…
2/ G worked as long haul cabin crew. He was off for a year, 1st for physical health reasons & then stress reasons, at which point his employment was terminated with a little more than 4 months' notice.
3/ During the notice period. G returned to work, performing some duties albeit not his contractual role. BA decided to extend his notice period to allow him to demonstrate an ability to sustain a full flying roster, implying that if he did so the termination might not go ahead.
Read 16 tweets
Jul 19, 2023
🧵Jackson v Uni Hospitals of North Midlands: EAT holds ET erred in law in finding a Hogg v Dover dismissal wasn't a Hogg v Dover dismissal. The EAT clarified that there's no special repudiatory breach threshold for a Hogg v Dover dismissal.

#ukemplawrb.gy/rttwp
2/ J was a specialist research nurse, entitled to 4 weeks' notice of termination. In a restructure, she was placed in a lower grade research practitioner role, against her will (she'd refused to sign T&Cs). Those deciding on this hadn't appreciated this was a redundancy situation
3/ Because of that, J hadn't been offered a trial period in the new role, nor redundancy on enhanced contractual terms, which is what she sought. The contractual terms provided for a loss of enhancement if a person left their job prior to expiry of notice.
Read 17 tweets

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