GMB v Corrigan; Corrigan v GMB

EAT: Elias J (President), Mr D Norman and Mr D G Smith: 19 October 2007

The appellant union suspended its general secretary, who resigned three weeks later, and appointed an acting general secretary, pending an investigation into allegations of electoral malpractice. The election for the substantive post was delayed until the completion of the investigation, and the adoption of amended electoral rules, more than a year later, when the acting general secretary was elected by a ballot of the membership. The claimant, a union member, applied to the certification officer for a declaration that the union was in breach of the requirement in section 46(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, to secure that every person holding a position in the union did so by virtue of an election, by allowing someone effectively to hold the office of general secretary without being elected. The certification officer upheld the complaint, deciding that due to the length of time the acting general secretary had been performing the functions of general secretary on an "acting" basis he was in reality holding that office itself, and the reason the union chose to delay the election was immaterial. He accordingly granted a declaration that the union had been in breach of section 46; but he refused the claimant's application under section 55(5A) to issue an enforcement order requiring the next election for general secretary to be held five years from when the general secretary was to be treated as though appointed to his position.

The union appealed against the finding that it was in breach of section 46, and the claimant appealed against the refusal of an enforcement order.

The Employment Appeal Tribunal held:
(1) The purpose of section 46(1) of the 1992 Act was not to oblige a union to hold an election as soon as a position became vacant but to secure that anyone in fact holding the position had been elected. In so far as so an acting officer was in truth the officer by another name a union would be in breach of the section by permitting him to act without being elected, but a person did not necessarily become an officer merely by the combination of his exercising the functions of the office for a period of time and the fact of the office being vacant. Where there was no legitimate reason for not taking steps to fill a vacant office by election it could be readily inferred that the only reason was to avoid the statutory obligation, but, in the present case, there was good reason for the union not to call an election under the discredited rules and no reason to conclude other than that at all material times there was an acting general secretary only. Accordingly, the union was not in breach of section 46.
(2) Since there was no breach of section 46, there was no power to make any enforcement order, but, in any event, it would have been wrong for the certification officer to have made an order identifying the date from which the union was in breach and requiring an election for general secretary five years from that date, since the general secretary had been elected to the position for a full five-year period in a properly held election and there was no basis for depriving him of the right to hold office for that period because of any default on the part of the union.

The union’s appeal was allowed, and the claimant’s appeal was dismissed.

Appearances: Jason Galbraith-Marten (Thompsons) for the union; the claimant did not appear and was not represented.