Interpreting trade union rules

Facts of the case

The rules of the Musicians’ Union (MU), until being recently amended, stated that it 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...”

In 2016/17, the MU set up a “safe space” for members to report sexual harassment at work. Certain members then raised serious complaints, including of sexual harassment, against another member, Dominic Kelly, in relation to incidents alleged to have occurred more than 28 days before being reported.

The MU investigated the complaints, upheld some of them and expelled Mr Kelly. Following an unsuccessful internal appeal, Mr Kelly complained to the Certification Officer (CO), the statutory regulator of trade unions. The CO upheld the complaint that the MU had instituted disciplinary proceedings “out of time”, albeit with clear unease in all the circumstances. She ordered the MU to take remedial steps and restore Mr Kelly’s membership.

The Employment Appeal Tribunal allowed an appeal by the MU, holding that the union had discretion to instigate disciplinary proceeding in respect of the alleged offences and, as such, to expel Mr Kelly.

Court of Appeal’s decision

The Court of Appeal (CA) dismissed Mr Kelly’s appeal. It held that, although the power to investigate outside the 28-day period was not unlimited, it did not accord either with the reasonable expectation of the union members or with common sense to interpret the rules in such a way as to prevent the MU from investigating the alleged offences. The CA observed that the CO had confused a duty to investigate in certain circumstances with a wider and less restricted power to investigate.

Referring to union rulebooks more generally, the CA reiterated that they are“not drafted by parliamentary draftsmen” and should not be construed “literally or like a statute”. Rules should instead be read in light of the principle: “what would the reasonable trade union member understand the words to mean?”.

Implications for employers

While this case is primarily a cautionary tale for unions and union members seeking to rely on an unduly legalistic interpretation of rules, it also has relevance for employers. In the same way as the CA has ruled that statutory recognition arrangements should be construed on the basis that union representatives “are not lawyers”, the judgment reiterates the importance of approaching trade union matters having regard to the “reasonable expectation of union members” and “common sense”.

Issues regarding unions’ alleged non-compliance frequently arise in an employment context. For example, employers may feel aggrieved if they perceive that unions are not following their rules to the letter as part of membership drives, in the context of applications for recognition. This case serves as a reminder that successfully advancing such technical arguments will generally prove extremely difficult.

Finally, the CA’s comments on the CO’s confusion of a duty and a power to investigate are useful. Events in recent years have highlighted the importance of employers investigating historic allegations of serious misconduct. Although employers are not often bound by time limits, the CA’s interpretive approach and application of “common sense” should help reassure employers that are trying to follow what they and their reasonable employees would consider to be the correct policy.

Kelly v The Musicians’ Union – judgment available here.