Employment Appeal Tribunal upholds union member's challenge to Certification Officer's election code ruling

In a significant judgement handed down on 8 October 2025, the Employment Appeal Tribunal has partially upheld an appeal by Andrew Evans against decisions of the Certification Officer concerning his complaints against the trade union Prospect. The case provides important guidance on the interpretation of union election codes and the scope of disciplinary powers within trade union rules.

Background to the dispute

Mr Evans, a member and officer of Prospect's BECTU sector, was suspended from office in June 2021 pending investigation into allegations of bullying and harassment made by a union employee. His suspension was imposed under standing orders adopted by the union's National Executive Committee, without first affording him the opportunity to make representations required under the union's disciplinary regulations for membership suspensions.

Separately, Mr Evans complained about a statement issued by Prospect's President in September 2021 endorsing the General Secretary Mike Clancy's re-election bid. The statement, circulated to members using union resources, praised Mr Clancy's leadership and encouraged his candidature for another five-year term. Mr Evans argued this breached the union's election code of conduct, which prohibits using union resources to promote any candidate.

The Certification Officer's decisions

The Certification Officer struck out both sets of complaints as having no reasonable prospect of success. Regarding the suspension, she found that the NEC's standing orders, which provided for precautionary suspension during investigations, formed part of the union's rules and that no breach had occurred. On the election code complaint, she concluded the code only applied where there were two or more candidates, and since Mr Clancy stood unopposed, no breach could arise.

The bias challenge

Mr Evans mounted an extensive challenge alleging bias, arguing that the Certification Officer's independence was compromised by structural links with ACAS, whose Council includes Mr Clancy. Mrs Justice Eady DBE comprehensively rejected these arguments, finding no evidence of actual bias and concluding that a fair-minded observer would not perceive any real possibility of bias arising from the funding and administrative arrangements between ACAS and the Certification Officer.

The judgement emphasises that whilst the Certification Officer receives administrative support through ACAS, the office operates independently with statutory protection from ministerial direction. The existence of appropriate safeguards, combined with the right of appeal to the EAT, ensures compliance with Article 6 ECHR requirements for an independent and impartial tribunal.

Precautionary suspension powers

The EAT dismissed Mr Evans' challenge to his suspension, finding that the NEC possessed power under the union's rules to impose precautionary suspension pending investigation. The judgement distinguishes between disciplinary sanctions requiring prior representations and administrative measures necessary for proper investigation of serious allegations. The standing orders adopted by the NEC under its rule-making powers were held to form part of the union's rules, providing lawful authority for the suspension.

Election code interpretation

However, the EAT allowed Mr Evans' appeal concerning the election code, finding the Certification Officer had erred in concluding it only applied when multiple candidates stood. Mrs Justice Eady held that the requirement for candidates to provide written undertakings to comply with the code upon accepting nomination, combined with the code's purpose of ensuring fairness from the outset of the electoral process, meant it could apply even with a single candidate. The matter was remitted to the Certification Officer for fresh determination.

This judgement clarifies important aspects of trade union governance, particularly regarding the distinction between precautionary and disciplinary suspensions, whilst affirming the independence of the Certification Officer's office despite its administrative relationship with ACAS.