Appeal No. UKEAT/0523/12/SM

EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

	At the Tribunal
	On 19 April 2013

Before
HIS HONOUR JUDGE DAVID RICHARDSON
(SITTING ALONE)

MR M DOOLEY	APPELLANT

THE UNION OF CONSTRUCTION ALLIED TRADES
AND TECHNICIANS (UCATT)	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - ALL PARTIES

	APPEARANCES

For the Appellant	MR JODY ATKINSON
(of Counsel)
	
For the Respondent	MR OLIVER SEGAL
(One of Her Majesty’s Counsel)
Instructed by:
O H Parsons & Partners Solicitors
3rd Floor, Sovereign House
212-224 Shaftesbury Avenue
London
WC2H 8PR	

SUMMARY
CERTIFICATION OFFICER

The Appellant was disciplined by the Respondent’s executive council.  He argued that the decision was vitiated by breaches of the rules of natural justice, in that (1) members of the executive council were automatically disqualified by bias in the circumstances, alternatively (2) there was apparent bias on their part, such that some different body ought to have been constituted to hear the disciplinary proceedings.  He further argued that the union must have misconstrued its own rules by finding a disciplinary matter proved when (it was argued) the Appellant was doing no more than asserting his rights, as he was entitled to do by virtue of article 10 and 11 of the ECHR.  The certification officer decided against him.

Appeal dismissed.  The certification officer was correct to find that there was no breach of the rules of natural justice and that the union had complied with its own rules.

HIS HONOUR JUDGE DAVID RICHARDSON

1.	This is the preliminary hearing of an appeal by Mr Michael Dooley against decisions of the Certification Officer dated 9 July 2012. At a preliminary hearing the question for the Employment Appeal Tribunal is whether the grounds in the Notice of Appeal, or any of them, raise a point of law which gives the appeal a reasonable prospect of success, or whether for some other compelling reason the appeal should be heard: see paragraph 9.7 of the EAT Practice Direction (2008).

2.	The decisions of the Certification Officer concerned two applications brought by Mr Dooley against the Union of Construction Allied Trades and Technicians ("UCATT"). They have been called respectively Dooley 2 and Dooley 3. In Dooley 2 Mr Dooley was successful in principle: the Certification Officer declared that he (and another candidate Mr Ritchie) had been unlawfully excluded from standing as candidates in the 2011 General Secretary election. But no order was made requiring the election to be run again, because Mr Ritchie had by the time of the decision resigned altogether as a member of UCATT and Mr Dooley had been expelled as a member of UCATT on 15 February 2012. Neither of them was eligible to stand. In Dooley 3 Mr Dooley challenged his expulsion as a member: he was unsuccessful. So the purpose of this appeal is to reverse the result in Dooley 3 and to obtain an order in Dooley 2.

3.	When the Notice of Appeal came before His Honour Judge Hand on paper, he held that six of the nine grounds disclosed no reasonable grounds for appealing. They have been taken no further: see rule 3(7) of the Employment Appeal Tribunal Rules 1993. He directed this preliminary hearing in respect of the three remaining grounds: grounds 1,2 and 5.  He directed exceptionally that both sides be heard on the preliminary hearing, so that I have had much fuller argument than usual on such a hearing.

The factual background
4.	Mr Dooley has been a member of UCATT from time to time for over 35 years and continuously from 1998 until his expulsion in 2012. He became a regional officer in 1999. He stood unsuccessfully against Mr Ritchie in 2004 and 2009. In December 2009 he brought an application before the Certification Officer challenging the result of the election ("Dooley 1 "). His challenge was successful. There was an order requiring the election to be re-run. Mr Ritchie had to stand down. The date for the new election was set for December 2011.

5.	In the meantime, however, Mr Dooley had been dismissed as a Regional Officer for alleged gross misconduct.  This took place on 26 January 2011.  He bought proceedings to the Employment Tribunal including a claim for unfair dismissal.  In its judgment dated 4 November 2011 the Employment Tribunal upheld his claim for unfair dismissal while finding that he had contributed to his dismissal to the extent of 50 per cent.  In short, the Employment Tribunal found that it had not been reasonable for UCATT to conclude that he was dishonest or fraudulent; but he had carelessly allowed a company to submit a substantial number of fictitious forms applying for Union membership and he had not co-operated with the UCATT disciplinary investigations and process.

6.	Shortly before the Employment Tribunal’s judgment a selection committee, appointed by the executive council of UCATT, had held that both Mr Dooley and Mr Ritchie were not fit and proper persons to stand for election.  The executive council endorsed this decision effectively barring them both from standing.  They were so informed by letter dated 28 October 2011.  It was this decision which the Certification Officer declared to be unlawful in Dooley (2).  He held that the union rules contained no power to reject a candidate on a broad “fit and proper person” basis and that, in any event, the procedure adopted by UCATT was unfair.  He noted also that UCATT had not previously applied a “fit and proper person” test.

7.	This brings me to the incident which was the ground for Mr Dooley’s expulsion from membership.  It took place on 2 November 2011.  He had, of course, just been unlawfully barred from standing in the election for general secretary.  He addressed a demonstration or protest.  I am told it was an unofficial protest concerning rates of pay for electricians and that members of other unions were present.  What he said was filmed and posted on YouTube.  He said:

“I have a message for the selection panel who refused to accept my candidature, I have a message for the UCATT hierarchy … go and fuck yourselves . I tell you, you can go and fuck yourselves as far as I am concerned.  I will continue to fight this and if it is necessary I will go for a High Court injunction, we will fight this, we will change UCATT, we will change the building industry, we will ensure that the building employers know building workers are out there, that there is a leadership that is going to take this union.  We are going to win and we are going to change the building industry …  If it is not done today, it will be done next month, next year but it will be done, the message is quite clear we will not back down, we are not going away …  There is a movement, a movement of which I belong to, they are called socialists, they are called socialist and I am proud to be part of it, I would urge every building worker that is out there to start looking at the political situation they find themselves in … the situation is, that a lot of unions and a lot of their leadership do not want this type of activity, they want a comfortable lifestyle, they have been having that too long in UCATT and that is going to change and I will do my best to change that and I hope that every single one of you when that happens you will be there by my side and together we will change the building industry, thank you.”

8.	On 15 February 2012, a complaint was made.  Mr Dooley was charged under Rule 25(1)(i) which provides as follows: 

“Disciplinary Powers
“1. The EC shall have power to impose a fine not exceeding £25, suspend from all or any benefits or from holding any office, or exclude from the Union, any member, in the opinion of the EC:
(i) by his or conduct acts against the interests of the Union; such conduct to include racist or sexist behaviour.”

9.	On 15 February 2012, the executive council met to consider the charge.  It is not necessary to set out in full what occurred on that day.  The Certification Officer made findings concerning it, and they are no longer the subject of this appeal.  It suffices to say that Mr Dooley left before the executive council became quorate; that the executive council unanimously concluded that his conduct amounted to action against the interests of the union and, by a majority, that he should be expelled from the union, the minority preferring a long ban on holding office.

10.	Mr Dooley appealed to the general council.  He was notified of the date on which the appeal would be heard but confined himself to making written representations.  The appeal was rejected.

11.	This was the state of play at the date of the Certification Officer’s decision.  As at today’s date, an appeal to the Employment Appeal Tribunal by the union in respect of the unfair dismissal claim has been heard and Judgment is awaited.  Also recently by a decision dated 25 March 2013, an Employment Tribunal rejected Mr Dooley’s claim under section 64 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), to which I will come later.  I record these further developments for the sake of completeness.  They do not bear in any way directly on the questions of law which I have to address today.

The Union’s rules
12.	I have already quoted Rule 25(1) of the Rules.  It is convenient also to quote parts of Rule 26, which set out procedural requirements applicable not only to hearings under Rule 25 but also to other forms of hearing.  

“Rule 26
Procedure for dealing with charges
1. The EC, any Regional Council, any Branch, Branch Committee or member of the Union may charge any member with any offence alleged to have been committed against Rule 25 or against any other Rule of the Union.
5. The Secretary of the Union authority before whom the charge is made shall give to the member charged written notice of the charge, specifying the facts on which the charge is based and the Rule or Rules of the union under which the charge is made.  S/he shall notify in writing the complainant and the member charged of the date and the place of the hearing and of their right to address the Union authority and to produce evidence, including a witness or witnesses, in order to support or rebut the charge or charges.  Such notice shall constitute a summons to the complainant and to the member charged to attend at the time and place stated in the notice.
8. The Union authority before whom the charge is made shall give to the complainant and to the member charged a full and fair hearing of their case at the time and place stated in the notice.  It shall consider such documentary and, in so far as it is reasonably practicable, oral evidence as is produced by both sides.
13. If the charge is not proved to the satisfaction of the competent authority, a minute to that effect shall be made, and the charge shall be dismissed.
14. If the charge is proved to the satisfaction of the competent authority, a minute to that effect shall be made, and the penalty shall be determined.”

13.	Finally, I should refer to Rule 21.14 which provides, so far as relevant:

“The EC shall transact the ordinary business of the union.  They may determine anything whereon the rules are silent.”

The statutory background
14.	The Certification Officer was empowered to consider Mr Dooley’s application under section 108A of TULR(C)A.  It is sufficient to quote the following provisions:

“Right to apply to Certification Officer
(1) A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect, subject to subsections (3) to (7).
(2) The matters are—
[…] (b) disciplinary proceedings by the union (including expulsion) […].”

15.	Section 108B makes provision for the granting of declarations and enforcement orders for the purpose of remedying a breach or threatened breach of the rules.  Such orders may be enforced as if they were court orders (see section 108B).  The procedure under section 108A is an alternative to applying to a Court for relief in respect of a breach or threatened breach of the rules (see section 108A(14) to (15)).  Application to the court in respect of a breach or threatened breach of the rules of a union is predicated on the basis that the rules of the union have contractual force.  When he directed a preliminary hearing, HHJ Hand QC was concerned whether the statutory jurisdiction may be narrower than the overlapping High Court jurisdiction in breach of contract.  I proceed on the basis that in the territory to which section 108A(1) applies, breach or threatened breach of the union rules, the statutory jurisdiction is no narrower than the overlapping High Court jurisdiction.

16.	Section 108C provides that an appeal lies from the Certification Officer to the Employment Appeal Tribunal on any question of law.  This, of course, is a limited right of appeal, more limited than the appeal would be if an application had been made to the Court.  The Appeal Tribunal is concerned to see whether the Certification Officer has applied correct legal principles, complied with the judicial duty to give reasons and reached findings and conclusions which are supportable – that is to say, not perverse – if the correct legal principles are applied.  A finding or conclusion is perverse if, and only if, it is one which no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached.

17.	In passing, I should mention that a trade union member has the right not to be unjustifiably disciplined (see section 64 of the 1992 Act).  The right applies, however, only where the union is disciplining the member for certain conduct specified in section 65.  An assertion by the member that the union has contravened the rules of the union is such conduct.  It was an application under section 64 that was recently determined by the Employment Tribunal as I have already mentioned.

Natural justice
18.	Grounds 1 and 2 in the Notice of Appeal relate to natural justice.  Mr Dooley had complained - complaint 10 in Dooley 3 - that the union on 15 February and 20 March breached the implied rule that it would conduct its disciplinary procedures in line with natural justice in that it is a principle of natural justice that the Tribunal must be partial and not be biased or have the appearance of bias.  

19.	In part, it was Mr Dooley’s case before the Certification Officer that there was actual bias on the part of Mr Steve Murphy, who had by this time been elected general secretary, and others.  He alleged “a hidden agenda or conspiracy”.  These allegations were not accepted by the Certification Officer.  He said he had:

“[…] heard insufficient evidence to substantiate such a claim in the face of outright and affronted denials by the union and evidence of culpable conduct by Mr Dooley leading both to his dismissal and expulsion.”

20.	There is no appeal against this aspect of the Certification Officer’s findings, which are findings of fact.  It is important background to what follows.

21.	In part, however, it was also Mr Dooley’s case that there was ostensible or apparent bias.  The Certification Officer dealt with this as follows:

“83. In the absence of actual bias, I have considered whether there was what has been described as ostensible bias.  In Porter v McGill [sic] [2001] UKHL 67, such bias was described as occurring where ‘the fair minded and informed observer, having considered the facts, would conclude there was a real possibility that the Tribunal was biased.
84. It was put to Mr Atkinson in argument that the logic of his position was that a person who brought the Union into disrepute by criticising the EC and/or GC, in no matter how egregious a manner, could not be disciplined as those who sat in judgment would be those who had been criticised and would therefore be biased.  Mr Atkinson felt constrained to agree, suggesting that sometimes this is the necessary outcome of a fair procedure, giving by way of example the acquittal from time to time of those facing criminal charges upon the discovery of serious flaws in the prosecution process.  Mr Segal submitted that this scenario within a trade union was neither desirable as an outcome nor correct in law.
85. In my judgment, it does not follow from either the involvement of the EC or GC in Mr Dooley’s dismissal or the involvement of three members from each of the EC and GC on the Selection Committee, that the members of those bodies were so compromised that their involvement in a latter allegation of misconduct by Mr Dooley is tainted by ostensible bias.  Mr Dooley’s dismissal was found to have been unfair and I have now found in Dooley (2) that his exclusion as a candidate was unreasonable, but the fact that decision-making bodies have erred in the past does not exclude them from a further consideration of issues involving the same parties, especially where, as here, there is no other forum in which the matters can be decided.  In any event, there was evidence upon which each of those decisions was reached.  Mr Dooley’s dismissal was based on his submission to the Union of membership application forms from Hudsons with ‘demonstrably fictitious’ names (see paragraph 27 of my decision in Dooley (No. 2)) and the Selection Committee had excluded Mr Dooley on the basis of the earlier decision of the EC to dismiss Mr Dooley, prior to the judgment of the Employment Tribunal.
86. It is of course undesirable that a body which has been criticised should be called upon to form a judgement as to whether that criticism has brought the organisation into disrepute.  However, the test of bias is not whether any person might perceive a possibility that the Tribunal is biased.  It is whether the fair minded and informed observer would perceive a real possibility of bias.  This is the test to be implied into the rules and should be considered in context.  On the facts of this case, an informed observer would be aware that the rules of the Union provide for no other forum to determine whether Mr Dooley had acted contrary to the interests of the Union, that the decisions to dismiss and to exclude Mr Dooley had not been unanimous and that the events of 2 November 2011 were not disputed by Mr Dooley.  In my judgment, the observer who was both informed and fair minded, would have had regard to the whole of the circumstances faced by the Union upon receipt of the complaint from Mr Renshaw.  If the Union had not processed Mr Renshaw’s complaint, it may well have been accused of a breach of rule in not doing so.  If it did process the complaint, it followed that the EC and GC, which had been criticised by Mr Dooley as the leadership of the Union, would have to determine the complaint.  In my judgment, such an observer would conclude that Mr Renshaw’s complaint was processed before the EC and GC without there being a real possibility of bias and thus a breach of the implied rule.”

22.	On behalf of Mr Dooley, Mr Atkinson first submits that the Certification Officer ought to have held members of the executive council, or at least some of them, to have been automatically disqualified.  He submits that the Certification Officer applied too high a test when he considered and rejected the allegation of conspiracy.  It was sufficient to show that the executive council, or members of the executive council, had an interest in the outcome.  He referred to Dimes v Proprietors of Grand Junction Canal [1852] 10 ER 301 where it was held that a financial interest, however small, in the shares of one of the parties barred a Judge from hearing the case.  He referred also to R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No 3) [2000] AC 119 where a directorship in one of the parties to an appeal, an intervener, was held to disqualify a Judge from hearing the case because he was involved in the promotion of the parties’ cause.  These were cases of automatic disqualification (see, in the Pinochet case, especially the speech of Lord Browne-Wilkinson at a page 135 and Lord Goff at 139).

23.	He goes on to submit that there were active supporters of Mr Stephen Murphy on the executive council and general council.  They were involved in the promotion of a cause, namely the promotion of Mr Stephen Murphy as general secretary.  But for the decision to expel Mr Dooley, Mr Murphy would have been removed from office, and there would have been an election which Mr Dooley may well have won; therefore, he submits, automatic disqualification should apply.

24.	I have no hesitation in rejecting this submission.  The cases upon which Mr Atkinson relies concern the association of a judge with a party in litigation, criminal or civil.  There is no useful parallel with the position of members of an executive council concerned to determine charges brought against a union member.  If I assume that some of the executive members were supporters of Mr Murphy, it cannot be said that Mr Murphy was a party to litigation, nor can it be said that the executive members had a financial interest in the determination of the disciplinary charge.

25.	Association with a cause would not be sufficient to disqualify a Judge automatically, as Lord Browne-Wilkinson made clear (see page 136 in Pinochet).  It was a particular and most unusual combination of factors which led to the exclusion of Lord Hoffman in that case - the fact that he had an active role as director or trustee of an organisation closely allied to and acting with a party to the litigation.  There is no parallel between the position of a judge in civil or criminal litigation and the position of members of the executive of a union.

26.	The Certification Officer considered and rejected Mr Dooley’s case of conspiracy and hidden agenda not because he was applying the wrong test for automatic disqualification but because he was addressing Mr Dooley’s case that the executive council was actually biased.  He rejected that case on the facts.

27.	Mr Atkinson’s second submission is that the Certification Officer placed undue weight upon his conclusion that no other body than the executive council could try the disciplinary proceedings.  He puts his case in two ways.  He argues that it was irrelevant to the test for apparent bias that no other body than the executive council could try the disciplinary proceedings.  He argues further that there was, in fact, a route by which the executive council could have delegated the disciplinary proceedings to another body: rule 21(4).

28.	The test to be applied in considering an allegation of apparent bias is derived in modern times from the decision of the House of Lords in Porter v Magill [2002] 2 AC 357 at paragraph 103.  The Court - in this the Certification Officer - must first ascertain all the circumstances which have a bearing on the suggestion that the Tribunal was biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the Tribunal was biased.  This was the test which the Certification Officer applied.  

29.	In my judgment, it was a relevant factor for the Certification Officer to take into account that the executive council was vested by the rules with the task of determining disciplinary proceedings.  This was its duty; nothing could be plainer than rules 25 and 26.

30.	In Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117 the Court of Appeal was concerned with disciplinary proceedings conducted by a domestic Tribunal.  Scott-Baker LJ approved a dictum of Mance LJ in Modahl v British Athletic Federation [2002] 1 WLR 1192 at paragraph 128:

“The principles of natural justice must adapt to their context and can be approached with a measure of realism and good sense.” 

31.	Scott-Baker LJ continued:

“The Tribunal in this case was exercising a domestic jurisdiction that involved a contractual relationship between the Respondent and NGRC.  There were, therefore, special features which the hypothetical observer would have in mind.  These include (1) the nature, function and composition of the Tribunal, (2) the particular character of the Tribunal’s proceedings, (3) the rules under which the proceedings are regulated, (4) the nature of the inquiry and (5) the particular subject matter with which the decision is concerned.”

32.	I drew to the attention of the parties the old case of Kuzych v White [1951] AC 585.  In that case, the Privy Council was concerned with disciplinary proceedings brought against a union member who, contrary to the strong views of most in his union, disagreed with the closed‑shop principle.  In obiter remarks, Viscount Simon said the following:

“If a so-called trial and a general meeting which followed had to be conducted by persons previously free from all bias and prejudice, this condition was certainly not fulfilled.  It would indeed be an error to demand, from those who took part, the strict impartiality of mind with which a judge should approach and decide an issue between two litigants, that icy impartiality of a Rhadamanthus which Bowen LJ in Jackson v Barry Railway Company [1853] 1 Ch 248 thought could not be expected of an engineer arbitrator or to regard as disqualified from acting any member who had held and expressed the view that the closed shop principle was essential to the policy and purpose of the union.  What those who considered the charges against the Respondent and decided whether he was guilty ought to bring to their task was a will to reach an honest conclusion after hearing what was urged on either side and a resolve not to make up their minds beforehand on his personal guilt however firmly they held their conviction as to Union policy and however strongly they shared in previous adverse criticism of the Respondent’s conduct.  The question of the extent to which those who took part in the so-called trial and in the general meeting which considered the report were actuated or influenced not only by preconceived views but by a resolve to condemn the Respondent is a question of fact to be deduced or inferred from the evidence.”

33.	This, to my mind, is an example in the context of trade union rules of the application of the principle that natural justice must be viewed in context.  Nor do I think the Certification Officer was bound to hold that Rule 21.4 was the solution to the problem.  The rules vested in the executive council the task of determining the disciplinary charge.  The rules were contractual in nature, and they were to be followed (see, for example, Callaghan & Carrigan v Aslef [2003] UKEAT/0564/01).  

34.	I make it clear that I do not proceed on the basis that there are never circumstances when any member of an executive committee should recuse himself or herself; but here the Certification Officer was faced with a broad, general attack on the executive committee as a whole.  I see no error of law in the way in which he approached the question of apparent bias.

35.	Finally, on the subject of apparent bias, Mr Atkinson submits for what he describes as a “constellation of reasons” that the Certification Officer erred in concluding that apparent bias was not made out.  However, if (as I have found) the Certification Officer directed himself properly in law, the assessment of the facts was for him.  The Employment Appeal Tribunal is not empowered to intervene.  In my judgment, the Certification Officer’s conclusions were open to him.  It must be kept carefully in mind that he rejected the challenge that the members of the executive council conspired against Mr Dooley or had a hidden agenda.

Ground 5
36.	I will set out Ground 5 of the Notice of Appeal in full.  It provides as follows:

“The Certification Officer did not consider the Appellants rights to free association and to take part in the activities of a trade union.  An activity of a trade union is to take part in the election for office to the union.  To participate in the election for the leadership the Appellant had a right to criticize the ruling group as part of that process.  He can publicly state why he is standing and highlight the failings that he sees in the ruling group he is standing against.  The Appellant argues that he has the right to free association under Article 11 of the European Convention of Rights and Freedoms.  Also Article 10 allows the right to free association which the Certification Officer as a public authority interfered with.  Also as a public authority the Certification Officer acted in a way incompatible with the Convention breach in s6 of the Human Rights Act 1998. The Appellant was the victim of an unlawful act by the Respondent in that they Respondents [sic] acted unlawfully when they disbarred him from standing as a candidate in an election in which he could have gained employment as the unions general secretary.  The Certification did not consider the Human Rights Act 1998 in reaching his decision.”

37.	I should say immediately that the factual premise behind Ground 5 seems to be that the speech in question was made as part of Mr Dooley’s election campaign.  In fact, it was not.  It was made when he knew he was not standing for election to a group which consisted of people convened for a different purpose and consisting of members of more than one union.

38.	This ground in the Notice of Appeal is not expressly linked to any particular finding of the Certification Officer, but Mr Atkinson links it to the way in which the Certification Officer dealt with complaint 8 in Dooley 3.  That complaint is that the union found the disciplinary charge proved notwithstanding the fact that, on the evidence before it, no reasonable Tribunal would have found the charge proved.  At this point, it is important to keep in mind that the Certification Officer is empowered to deal with actual or threatened breaches of Union rules, not with the merits of disciplinary findings.  There is, as I have already pointed out, a separate jurisdiction to deal with unjustified discipline within the 1992 Act.

39.	The Certification Officer directed himself as follows, in effect, restating principles found in the Judgment of Denning LJ in Lee v Showmen’s Guild [1952] 2QB 329 (paragraph 69):

“I respectfully agree that my jurisdiction under section 108A of the 1992 Act in respect of breaches of the rules of a trade union extends to circumstances in which a breach of a rule which relates to any of the matters set out in section 108A(2) has been found with no evidence to support that finding.  On the other hand, my jurisdiction does not extend to weighing the evidence upon which a union has reached such a decision in the same way as an Employment Tribunal would be in a case of unfair dismissal.  I need only satisfy myself that the evidence is so obviously insubstantial or trivial that no decision making body acting reasonably could have relied upon it without being in breach of rule.  The possibility of such a finding, however, does not open up an avenue for impugning those decisions which are based upon relevant and credible evidence and fall within the wide discretion given to such bodies under union rules.”

40.	The Certification Officer’s conclusions were the following (paragraph 69): (see also paragraph 75, which sets out further conclusions which the Certification Officer reached on the question of disciplinary sanction):

“On the facts of this case, Mr Atkinson invites me to find that the actions of Mr Dooley on 2 November 2011 were not capable of being found by a reasonable EC as being contrary to the interests of the Union as provided for in rule 25.1(i).  I do not accept that submission.  Mr Dooley chose to speak in a public place at which members of rival unions were present and in front of a banner which has a significant meaning for many Union supporters.  He expressed his view of the Union hierarchy in an abusive manner and accused the leadership of wanting a comfortable lifestyle, thereby implying that they were not fighting for their members as they should.  In my judgment, this constituted evidence upon which the EC could lawfully conclude that Mr Dooley had brought the Union into disrepute and thereby acted contrary to the interests of the Union.  I find that the EC had a wide discretion in determining what is in the interests of the Union, which discretion is guided by but not restricted to, the objects of the Union.  Accordingly, in finding that the actions of Mr Dooley were contrary to the interests of the Union, I find that the Union was not in breach of its rules as alleged.”

41.	Mr Atkinson submits firstly that Mr Dooley was in effect disciplined for asserting that the executive council had acted in breach of Union rules.  It cannot, he submits, be contrary to the interests of the union for a complaint of that kind made in good faith and in fact correct to be drawn to public attention.  In finding that the executive council could expel for that reason, the Certification Officer must have misconstrued the union rules, in particular the ambit of Rule 25.1(1).  I reject the submission.  It founders on the facts.  I have set out the reasoning of the Certification Officer.  It does not depend on a finding that Mr Dooley was disciplined for asserting that the executive council had acted in breach of the rules.

42.	Secondly, Mr Atkinson submits that the union must have construed and applied its own rules in a way which contravened Article 10 or Article 11 of the European Convention, which afford rights to freedom of expression and to freedom of association.  He relies on X v Y [2004] IRLR 625 for the proposition that convention rights may affect the meaning to be given to the rules of the union.  His precise point is that the Certification Officer should have held that it was not open to the union to construe its rules in a way which meant that anyone who publicly expressed an opinion critical of the union’s leadership was acting against its interests and thus potentially liable to expulsion.

43.	I reject the submission.  In the first place, the Certification Officer did not find that the executive committee considered the mere fact that Mr Dooley expressed an opinion critical of the union’s leadership to be for that reason acting against its interests.  He approached the matter on a different footing, set out in paragraph 69 of his reasons, which I have quoted.  The way in which he approached the matter corresponded with evidence he received about the executive council’s reasons for the decision (see paragraph 26 of his reasons).   It was not the mere fact of criticism which was taken into account but the nature of the criticism and the context in which the criticism was made.

44.	To my mind the Certification Officer properly performed his task which was to determine whether there was a breach or threatened breach of the rules.  I see no error of law in his conclusions.

Concluding remarks
45.	For these reasons the appeal will be dismissed

46.	As I leave this preliminary hearing, I should make one thing clear.  Mr Atkinson’s submissions were, to a large extent, predicated on the basis that the executive council or general council did act or may have acted from ulterior motives, namely preventing Mr Dooley’s candidature for general secretary in order to prefer the candidature of another person.

47.	It is no part of my task today to determine that question.  My task is to consider whether there is any error of law in the Certification Officer’s determination.  I have found none, but it is only fair that I should record Mr Segal’s submission which is that those bodies which have had to consider the Respondent’s motivation have found that the Respondent acted for the reasons given and not from any ulterior motive.