The Claimant, a member of Unite the Union, appealed pursuant to section 108C of the Trade Union and Labour Relations (Consolidation) Act 1992 against the decision of the Certification Officer. The Certification Officer decided that the disciplinary procedure followed by Unite against the Claimant involved no breach of the union’s rules. That issue turned on whether the union had breached the rules of natural justice which were incorporated within the disciplinary procedure. Specifically, the Claimant relied on apparent predetermination bias arising from the prior involvement in the disciplinary process of the chair of his disciplinary panel. The Certification Officer’s decision was taken on remission following a successful appeal to the EAT which identified the test for her to apply. The Claimant appealed against the further decision of the Certification Officer on three grounds.

The EAT dismissed the appeal. The Certification Officer had identified and applied the correct test: whether the chair of his disciplinary panel involvement at various stages of the process before chairing the disciplinary panel was such that a fair-minded and informed observer, knowing the facts, would think that there was a real possibility that the chair had predetermined the matter. The Certification Officer had not erred by failing to ascribe to the hypothetical observer knowledge that some other unions separate out functions during the disciplinary process. That matter had not been argued below and the Certification Officer did not err by focusing on the facts of the instant case. The Certification Officer did not err by failing to take into account or refer to a number of evidential matters raised by the Claimant.