Legal Update: Unite the Union v Alec McFadden  EWCA Civ 199 (19 February 2021)
Written by Bethan Davies.
The case related to a complaint made against Mr McFadden, that he had inappropriately touched a woman at an anti-austerity march attended by Unite members. A complaint was raised with Unite and Mr McFadden was found to have breached the union’s rules on conduct “in the workplace”. He appealed through the union’s procedures and his appeal was unsuccessful. Thereafter, Mr McFadden made a complaint to the assistant certification officer [“ACO”]. The ACO determined that as the alleged conduct was outside the workplace, in a context where Mr McFadden was not acting as a representative of Unite, nor at an event organised by Unite, the complaint did not pertain to conduct that Unite could discipline him for and consequently the allegation was null and void. The ACO ordered Unite to reinstate McFadden to his positions held prior to the suspension.
Thereafter further disciplinary proceedings were brought under different, wider rules which were not limited to conduct within the workplace. It was found that the respondent's actions breached those rules, and he was barred from holding any union office. Mr McFadden complained to the certification officer [“CO”] that the second disciplinary proceedings were in breach of the doctrine of res judicata. The CO held that the doctrine did not apply to the union's disciplinary processes:
“In my view, the relationship between the Union and its member is closer to the relationship between an employer and employee than to a professional body and a member or registrant. The Union member freely enters into the contract with the Union and, by entering into the contract, gives the Union a contractual right to take disciplinary action in certain circumstances. That disciplinary action is, usually, taken internally within the Union without any external adjudication. This is very similar to an employee entering into a contract with an employer.” [paragraph 35 of the CO decision]
The CO did not accept that a union’s disciplinary procedures could be compared to litigation or an adjudication which is susceptible to the doctrine of res judicata. The panels which were constituted to make decisions in this case were panels of Unite. Although they were required to act fairly and without bias, they were not an independent tribunal or adjudicator. [paragraph 37 of the CO decision]
“On that basis, I am satisfied that the concept of res judicata in the form of cause of action estoppel does not apply to the decision made by Unite the Union to begin the second set of proceedings.” [paragraph 40 of the CO decision]
Mr McFadden appealed to the EAT, which reversed the CO's decision.
Unite then appealed to the CoA.
The issue in the appeal was whether the doctrine of res judicata applied to disciplinary proceedings of a trade union.
By the time the appeal was heard Mr McFadden had retired and did not wish to become an offer of Unite again. The CoA determined it would be in the public interest to determine the appeal, despite the same being purely academic. [paragraphs 35 – 37]
The Appeal was upheld.
The application of the doctrine of res judicata within courts or similar tribunals was contrasted with employer’s disciplinary powers;
“the doctrine of res judicata applies (presumptively) where a body is given jurisdiction to determine any issue which establishes the existence of a legal right.” 
Analogy was drawn between the relationship between Unite and Mr McFadden, and that of an employer/employee relationship:
“On the other side of the dividing line are purely consensual arrangements where there is no independent body entrusted with the function of adjudicating on the legal rights of the parties. In this context it is important to recall that, as a matter of law, the rulebook of a trade union is a contract between all of its members, in other words a multilateral contract. 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  EWCA Civ 178;  QB 131, at paras. 39-54. Christou concerned the exercise of disciplinary powers by an employer under a contract of employment.” 
In Christou Elias LJ said:
“… it is wrong to describe the exercise of disciplinary power by the employer as a form of adjudication. The purpose of the procedure is not ‘a determination of any issue which establishes the existence of a legal right’… nor is it properly regarded as ‘determining a dispute’.
In the employment context the disciplinary power is conferred on the employer by reason of the hierarchical nature of the relationship. The purpose of the procedures is not to allow a body independent of the parties to determine a dispute between them. Typically it is to enable the employer to inform himself whether the employee has acted in breach of contract or in some other inappropriate way and, if so, to determine how that should affect future relations between them … The employer has a duty to act fairly and procedures are designed to achieve that objective. The degree of formality of these procedures will vary enormously from employer to employer. But even where they provide a panoply of safeguards of a kind typically found in adjudicative bodies … that does not alter their basic function. It is far removed from the process of litigation or adjudication, which is in essence where this doctrine bites.” [47 – 48]
The same had to be true in the case of Unite, there was no independent body invested by law with jurisdiction to determine the legal rights of the parties . Distinctions could properly be made between unions and decisions made by regulatory bodies , and tribunals founded by Royal Charter .
It was held that the doctrine of res judicata does not apply to a trade union’s disciplinary proceedings . This does not mean unions may discipline members as they please, such proceedings remain subject to rules of natural justice and fairness . Examples of unfairness given were if a union attempted to bring exactly the same proceedings a second time when they had been dismissed previously, or if a union attempted to go behind a finding of fact which had previously been made, even if the second set of proceedings is brought under different rules [72 – 73]. In the instant case, there was no inconsistency between the findings of fact in the two sets of disciplinary procedures.
The CoA set out succinctly approach to be taken in determining whether res judicata applies to a decision-making body. The case will be useful in cases where the relevant body falls outwith the broad categories of tribunal versus employer.
The full judgment can be found here.