Certification Officer: powers to act without a complaint and to conduct an investigation
How the Certification Officer (CO) applies her powers to act without a complaint to conduct investigations into trade unions and employers’ associations.
What this guidance is
The Trade Union and Labour Relations (Consolidation) Act 1992 sets out specific legal requirements for trade unions and employers’ associations.
The CO has processes for handling complaints from members of trade unions or employers’ associations who think that their organisation has breached those requirements.
The CO has a seperate process for reporting financial irregularities.
The Trade Union Act 2016 gave the CO additional powers to:
- consider whether an organisation has breached a legal requirement, even when the CO has received no complaint
- investigate an allegation by requiring an organisation to provide specific documentation or by appointing inspectors to investigate on her behalf
This guidance explains how the CO uses these additional powers.
The powers under the Trade Union Act 2016 only apply to suspected breaches that occurred on or after 1 April 2022.
Sometimes, the CO may take a different approach to the one set out in this guidance. On those occasions, she will explain why a different approach is necessary.
Legal duties the powers apply to
Under the 1992 Act, the Certification Officer has investigatory powers relating to the following obligations placed on trade unions and employers’ associations:
- respect restrictions on the use of political funds for political activity
- follow procedures for holding political fund ballots
- adhere to their own political fund rules
- adhere to rules for ballots on amalgamations or transfers (mergers)
Trade unions must also:
- ensure they compile and maintain a register of the names and addresses of its members and ensure that in so far is reasonable practicable, the entries are accurate and up to date.
- ensure that certain types of offenders do not get positions in the trade union
- adhere to the law around electing a president, general secretary and executive positions
The CO’s approach to dealing with concerns
In all matters, the CO aims to apply her powers in a way that is fair, impartial and independent. In considering concerns she will give particular attention to:
- proportionality – considering whether the impact, including cost, of taking action exceeds the benefits that might be derived as a result of that action
- accountability – explaining the reasons for her decisions
- consistency – ensuring that there is a consistent approach to decision making
- transparency – ensuring that parties are informed of her decision and the reasons for it
- targeting – ensuring that any action, including investigation and enforcement, is focused on the risk arising from the issue being considered
How the CO can act without receiving a complaint
If the CO has information that suggests an organisation may have breached a legal requirement, she can consider the breach even if nobody has complained about it.
Individuals who provide her with information as part of this process have no right in these cases, and there is no need for a hearing.
The CO’s team will:
- review whether the information relates to something within the CO’s powers
- check that the breach occurred on or after 1 April 2022
- check the quality and credibility of the information
- confirm that there are reasonable grounds to suspect a legal requirement has been breached in the alleged manner
If the team finds that there is no case to answer, they will take no further action.
If they assess that there may be a case to answer, they will ask the trade union or employers’ association to respond. They will then prepare an initial assessment for the CO, suggesting how she might like to proceed.
Possible outcomes
The CO can decide:
- no breach has occurred - she will write to the organisation to explain her decision
- a breach is likely to have occurred – she will offer to meet with the organisation to explain her opinion and invite a response before making a final decision
A meeting that takes place as part of this process is not a formal hearing, but an organisation can bring legal representation if it wants to.
If the CO decides that a breach has occurred, she may issue a decision and, if appropriate, an enforcement order. There may be circumstances where a formal decision is not necessary. For instance where the union had already identified and rectified the breach.
Investigating complex cases
In complex cases where the CO is not able to make a decision based on the information she holds, she can require an organisation to provide specific documentation. Or she can appoint someone to do this on her behalf.
CO will only do this when:
- she has specific reason to do so
- she believes the documentation exists
She will explain why she needs to see the documents and be mindful of the fact that such documents may be confidential to the organisation.
Appointing inspectors
The CO can also appoint an inspector to investigate the concern. The inspector can be:
- a member of her team
- an external inspector, if special expertise is required or the amount of work required would be detrimental to the delivery of the CO team’s work
Before appointing an inspector, the CO must have reasonable grounds to believe that an organisation has breached a legal requirement in the 1992 Act.
She also:
- considers whether appointing inspector is proportionate
- balances the financial cost of appointing inspectors with the risk of the organisation having breached a legal requirement
The inspector will write a final report for the CO.
The trade union or employers’ association will have a chance to comment on the report before the CO makes her final decision.
The CO will issue a declaration on whether a breach has occurred and, if appropriate, an enforcement order.
Financial penalties
When the CO decides that an organisation has breached a legal requirement, she can impose an appropriate financial penalty. She will only impose a financial penalty when she believes it is proportionate to do so, and she will always explain why she is imposing the penalty.
See guidance on complaining to the CO for information about financial penalties.
Appeals
A trade union or employers’ association can appeal a decision of the CO (including the decision to impose a financial penalty) to the Employment Appeal Tribunal. Nobody else has the right to appeal the CO’s decision.