Bhogal v National Education Union: EAT overturns Certification Officer's strike-out of rules dispute

The Employment Appeal Tribunal has set aside a Certification Officer's decision to strike out a union member's complaint that his union had breached its own disciplinary rules, holding that the rules were genuinely ambiguous and that the Certification Officer did not have sufficient material before her to resolve the dispute summarily.

Paramjeet Singh Bhogal, a member of the National Education Union, was suspended from membership in December 2023 pending disciplinary proceedings brought against him by the union's national officers, following complaints that included allegations of aggressive conduct on social media. Mr Bhogal complained to the Certification Officer that the officers had no power under the union's rules to bring a complaint of that kind or to suspend him as a result, arguing that officers could only initiate proceedings under specific categories of the rulebook that excluded conduct falling within the Code of Professional Conduct or behaviour said to bring the union into disrepute. The union disputed that reading, maintaining that a separate rule gave officers an unrestricted power to formulate complaints and suspend members regardless of which category of alleged misconduct was involved.

The Certification Officer preferred the union's interpretation and struck out Mr Bhogal's application on the basis that it had no reasonable prospect of success, relying on the union's letters confirming which rule had been used to suspend him and on a small number of supporting documents, including an earlier version of the rulebook and internal committee minutes referring to a subsequent proposal to amend the rules.

Allowing the appeal, Her Honour Judge Joffe held that the relevant provisions were reasonably capable of bearing more than one meaning. The rulebook's reference to a complaint "under these proceedings" could plausibly be read either as limited to the categories of misconduct expressly linked to the officers' investigatory powers, or as a freestanding power unaffected by a later rule change introducing those powers for a narrower set of offences. Neither the earlier rulebook nor the committee minutes relied upon by the Certification Officer resolved that ambiguity, and the minutes in any event postdated the rules they were said to illuminate.

Drawing on established principles governing the interpretation of trade union rulebooks as multilateral contracts, and on the Certification Officer's power to strike out applications with no reasonable prospect of success, the judgement held that a summary determination of this kind could only properly be made where the wording admitted of only one meaning, or where the available context left only one interpretation reasonably arguable. Neither condition was satisfied here. The judgement noted the particular difficulty facing an individual union member, who typically has no personal knowledge of a rulebook's drafting history and cannot be expected to identify contextual material he has no means of accessing, in contrast to parties to an ordinary commercial contract.

The tribunal declined to entertain separate arguments concerning alleged victimisation, treating them as outside the narrow issue that had been before the Certification Officer. The effect of the ruling is that Mr Bhogal's original application is reinstated and must now be determined afresh in accordance with the Certification Officer's statutory powers.