Res Judicata and Employers’ Internal Disciplinary Procedures

Nicholas Siddall KC considers the recent decision of the Court of Appeal in UNITE-v-McFadden, its guidance as to the application of the principle of res judicata as regards internal disciplinary proceedings of a union and the potential wider application of the decision to internal disciplinary proceedings of employers.

The Facts

The relevant facts are simply stated. The Respondent union official was faced with two sets of disciplinary proceedings under the rulebook of the Union. He was initially ‘convicted’ in the former but that decision was quashed by the Certification Officer (“CO”) on the basis that the allegation was brought under a rulebook provision which only applied in the workplace and that was not the case here. The second set of disciplinary proceedings relied on the same facts but were brought under different provisions of the Union’s rules. Those proceedings led to his expulsion from the Union. He sought to argue that the second set of proceedings were unlawful before the CO. The Respondent lost before the CO but won in the EAT. The Union appealed to the Court of Appeal.

The Court of Appeal Judgment as to the Scope of Res Judicata

The judgment of the Court of Appeal (Singh LJ) is characteristically illuminating. He made the following points:

• Res judicata is a portmanteau term which encompasses, cause of action estoppel, issue estoppel and Henderson-v-Henderson abuse of process;
• Only the first of those principles is -generally- an absolute bar to the raising of matters in subsequent proceedings;
• Henderson abuse involves a broad, merits-based approach to the propriety of raising a matter in subsequent litigation;
• 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;
• On that basis the principle applied to the decisions of e.g. a regulatory body set up by Royal Charter
• However the principle does not apply to purely consensual contractual arrangements where there is no independent body engaging in a process of adjudication. In that regard the Court of Appeal relied on the analogy with internal disciplinary proceedings of an employer as per the judgment of Elias LJ (as he then was) in Christou-v-London Borough of Haringey [2014] QB 131.

Relying on the above the Court of Appeal that internal disciplinary proceedings of a Union were akin to internal disciplinary proceedings of an employer such that the doctrine of res judicata did not apply.

Pointers as to Unfairness?

As the Court of Appeal observed that an employer’s internal disciplinary procedure is akin to internal disciplinary proceedings of a Union it appears that observations made by Singh LJ as to actions of a Union which might be unlawful in the context of successive disciplinary proceedings arguably read across into the internal disciplinary proceedings of an employer.

Singh LJ noted that a Union is bound by the rules of natural justice or, as he put it, a duty to act fairly which again seems readily to apply in the context of the unfair dismissal provisions of the Employment Rights Act 1996

In the judgment Singh LJ endorsed the following points:

• An attempt to bring exactly the same proceedings after the first was dismissed would be unfair and unlawful (which was not the facts of Christou as the employee there -in the context of the death of Baby P-was initially charged with essentially procedural failings prior to a more substantive conduct charge in the second set of proceedings);
• it would be unfair and unlawful if a union attempted to go behind a finding of fact which had previously been made even though the second set of proceedings is brought under different rules of the Union;
• However it would not be unfair to bring a second set of proceedings if the first were dismissed only because they were brought under the incorrect provision of a procedure;
• It is important not to lose sight of the important public interest in having serious allegations, such as allegations of sexual harassment, properly dealt with. Unions are not to be prevented from dealing with those allegations properly and fairly only because they made a mistake in the initial charging decision.

Conclusion

It thus appears that whilst the comments of Singh LJ were made in the context of a Union’s charging decision they arguably provide greater clarity on the Christou line of authority and of the circumstances where multiple disciplinary proceedings by an employer involve a risk of a finding of unfairness.

Nicholas Siddall KC is a member of Littleton’s Employment group and accepts instructions from employers and employees in all aspects of statutory employment litigation.