Unite the Union v Andrew Green

MR JUSTICE LAVENDER: (1) Introduction

1. The purpose of this hearing is to determine an issue as to the construction of the rules and standing orders of Unite the Union (“the union”). On 5 June 2023 the defendant, William Andrew Green, known as Andy Green, was elected as chair of the Executive Council of the union. Some members of the Executive Council became disaffected with his performance in that role. A special meeting of the Executive Council was requested and it took place on 10 March 2025. The meeting was requested to consider a motion (“the removal motion”) in the following terms: “Under Rule 14.7 and by this resolution the Executive Council hereby removes Andy Green from the role of Chair of the Executive Council in accordance with its powers under that rule.”

2. The Executive Council has 61 members. The voting on the removal motion was as follows: 31 for the motion, 28 against and one abstention. A part 8 claim form was issued on Friday, 4 April 2025, in which the issue for decision is identified as: “… whether the rules of the Union have the effect that Defendant was validly removed as Chair of the Executive Council by the majority vote of the Council on 10 March 2025 or whether, as he contends, the Union’s rules provide that he could not be removed unless at least two thirds of members of the Council voted for his removal.” (2) The Proceedings

3. I do not propose to go through all of the pre-action correspondence which was generated, but it is relevant to note that the defendant’s solicitors, Farrer & Co, said that they had been instructed to represent the union. Their instructions came from the General Secretary of the union, Sharon Graham.

4. The union is named as the claimant in the claim form, but there is an issue whether the solicitors who issued the claim form, Cole Khan Solicitors LLP (“Cole Khan”), had authority to commence proceedings on behalf of the union. Cole Khan were instructed by the 31 members of the Executive Council who voted for the removal motion, 30 of whom had been among the 31 members who had requested the special meeting of the Executive Council. The members of the Executive Council who have instructed Cole Khan have been referred to as “the 31”.

5. On 4 April 2025, the day on which the claim form was issued, Cole Khan also issued an application for an injunction, seeking an order that the defendant immediately vacate the position of chair of the Executive Council and cease to perform or exercise all or any of the powers, functions or duties of the position of chair of the Executive Council.

6. The evidence served in support of and in opposition to the injunction application is voluminous, but little of it is relevant to the issue which I have to decide today. It mostly concerns the 31’s complaints about the defendant’s conduct and the defendant’s response to those complaints. I am not going to express any view on those issues, which have no bearing on the question of construction of the union’s rules and standing orders which is before me today.

7. The defendant issued an application on Monday, 7 April 2025 seeking a declaration that Cole Khan is not instructed for the union and is not permitted to act on behalf of the union in the present proceedings. On the morning of 10 April 2025 the Finance and General Purposes Committee of the union held a meeting. The majority of the members of that committee are among the

31. The committee passed a resolution purporting to ratify the instruction of Cole Khan on behalf of the union. I say nothing about the validity of that resolution.

8. On the same day, the two applications came before me. I was concerned that neither application addressed the real issue which needs to be decided in this case, namely whether the removal motion was passed or defeated. I proposed, and the parties agreed, that I list that issue for determination today. I made no order on either application. Instead, I proposed that the parties consider agreeing that my decision today will be binding on all concerned, i.e., the union, the 31 and the defendant. I am told that this has been agreed and that it has also been agreed that the union will bear all of the costs of these proceedings. (3) The Rule Book

9. The union’s rules are contained in its Rule Book. Rule 14 is entitled, “Executive Council”. Rule 14.7 provides as follows: “At the first meeting of the Executive Council following its election there shall be appointed by and from the members a Chair. The Executive Committee [sic] will have the power to remove and replace its Chair at any time, and to appoint one or more Vice Chairs for such business and period as it deems fit from time to time.”

10. Rule 14.8 provides, inter alia, as follows: “The Chair shall preside over all Executive Council meetings, see that the business is properly conducted, and sign the minutes of each meeting when passed. …”

11. Rule 14.9 begins as follows: “The Government, management and control of the Union shall be vested in the Executive Council collectively, which may do such things consistent with the rules and objects of the Union as it may consider expedient to promote the interests of the Union or any of its members. In particular, and without limiting the general powers conferred on it by these rules the Executive Council shall have the power to: …”.

12. There then follows a list of 18 things which the Executive Council has power to do. These include, in rule 14.9.16: “Decide its own Standing Orders and procedures in all matters not expressly provided for in these rules.”

13. In addition, rule 14.9.18 lists as one of the things which the Executive Council can do: “Decide any question relating to the meaning and the interpretation of these rules or any matter not expressly provided for by these rules which decision shall be binding on all members of the Union.”

14. Rule 14.11 provides as follows: “In addition to any express powers in these rules provided, the Executive Council shall have power generally to carry on the business of the Union, as it may deem necessary, and do such things and authorise such acts, including the payment of moneys, on behalf of the Union, as it, in the general interests of the Union, may deem expedient, and to delegate to any person or persons the power to represent and to act on behalf of the Union. …”

15. Several rules which concern the procedure of bodies other than the Executive Council refer to voting by a majority on particular issues: see rules 8.7, 13.3, 17.9, 25.6, 25.7, 25.8 and 25.9. Only two rules, rules 13.6 and 32.1, require more than a simple majority. One of these, rule 13.6, concerns votes by the Executive Council to amend the rules between Rules Conferences. (4) The Standing Orders

16. The standing orders adopted by the Executive Council pursuant to rule 14.9.16 include the following: “3.1 The EC shall elect a Chair who shall, when present, chair all meetings of the EC and the Finance and General Purposes Committee. The EC shall also elect 2 Vice-chairs.” “3.3 The Chair shall have an ordinary vote on all matters. 3.4 The Chair shall not have a casting vote.”

17. Standing order 7, entitled “Conduct of Business”, provides, inter alia, as follows: “7.1 The Chair shall control the meeting. Members may only speak when called by the Chair. The Chair shall have discretion on whether to allow a member to speak more than once on a subject provided that a mover of a motion may reply to the discussion. 7.2 The Chair shall have the same speaking rights as any other member. In addition, the Chair may intervene during or at the conclusion of any discussion, to clarify the issues to be decided and/or to sum up the discussion.” “7.5 The ruling of the Chair on any question relating to the conduct of the meeting shall be final unless a challenge to the Chair is supported by at least two thirds of the members present. 7.6 Save as provided herein, the business of the EC shall be conducted in accordance with the normal rules of debate as laid down by Walter Citrine in the ABC of Chairmanship. 7.7 In the event of equality of votes, the proposition before the meeting shall not be carried.”

18. Standing order 9.1 provides as follows: “The EC may, with the support of at least two thirds of the members present, vote to suspend these standing orders or one or more of them.”

19. Standing order 11.2 provides as follows: “The minutes shall record decisions made at EC meetings. Where a vote is required, the votes of individual members shall be recorded in the minutes. The minutes will be subject to approval at the next EC meeting.” (5) The ABC of Chairmanship

20. The ABC of Chairmanship (“the ABC”), referred to in standing order 7.6, is a book which was first published in 1939 and which was written by Walter Citrine, later the Right Honourable Lord Citrine GBE, who was the General Secretary of the Trades Union Congress from 1926 to 1946. Michelle Lorraine Smith, one of the 31, has said in her witness statement that the ABC is widely regarded as the definitive book on how meetings should be run and committees managed in trade unions. This is not disputed by the defendant.

21. The ABC consists of a number of different elements including advice to chairmen, suggestions for standing orders and procedures to be followed in committee debates. For instance, chapter 8 of the ABC is entitled, “Voting and Elections”. In a section on voting on motions, it says that: “… if there are more votes in favour of the motion than against it, the chair announces: ‘The motion is carried.’ If the majority are against it, the chair declares it lost.”

22. Chapter 13 of the ABC is entitled, “Points of Order, the Right of Reply and Suspension of Standing Orders”. It contains the following: “Challenging the chair’s ruling The chair needs sufficient authority to run the meeting without having continually to face flippant challenges. At the same time, however, there needs to be some mechanism to prevent them acting autocratically or unreasonably. The following standing order aims at striking the right balance. ‘The ruling of the chair on any question under the standing orders or on points of order or explanation shall be final, unless challenged by at least four members, and unless two thirds of the members present vote against such ruling’. (The number could, of course, be varied according to the size of the meeting.) Under this procedure, the member who wants to dispute the ruling says ‘I challenge your ruling, Madam Chair’. The chair then asks ‘Are there three other members present who challenge my decision?’ If not, the matter is at an end. If three additional members rise, the chair temporarily vacates the chair. The secretary then reads the motion as ‘That the chair’s ruling be upheld’, and the motion is put to the vote by the secretary without any speeches. Unless two-thirds of the members present vote against the motion, the chair’s ruling must stand. Even if the motion is lost, it does not mean that the chair’s decisions for the whole meeting have been rejected, but just the one under dispute. The chair should not be over-sensitive and regard it as a resigning issue. They should accept the vote democratically, resume the chair, abide by the will of the majority and carry on. Motion of ‘no confidence’ However, if things have got to the stage when the motion ‘That this meeting has no confidence in the chair’ is carried by a two thirds majority, then the chair has no choice but to resign. Again, the voting on this should be conducted by the secretary, but in such an unlikely circumstance it would be right for the mover to explain precisely why they are moving the motion and for the chair to reply.”

23. I will refer to this last paragraph as “the no confidence paragraph”. (6) Other Potential Methods of Resolving this Dispute

24. I have already mentioned rule 14.9.18, which gives the Executive Council power to decide any question relating to the meaning and the interpretation of the union’s rules. No party has suggested that the present dispute should be resolved by the Executive Council pursuant to that rule. Given that this dispute concerns the functioning of the Executive Council itself, that is understandable.

25. Another option would have been for a member of the union to apply to the certification officer for a declaration pursuant to section 108A of the Trade Union and Labour Relations (Consolidation) Act 1992. However, no such application has been made by any party and it is clearly expedient that the issue should be decided as soon as possible. (7) Some Factual Issues

26. As I have already mentioned, most of the evidence which has been served is irrelevant to the issue which I have to decide, since it concerns complaints about the defendant’s conduct as chair and his response to those complaints. I do not propose to dwell on the evidence, but I will mention a few points.

27. First, there is evidence as to what the parties were told about the procedure for removing the chair of the Executive Council: (1) The defendant says in his statement that he was told, before he accepted appointment as chair, that he could only be removed by a vote of two-thirds of the Executive Council. He says that he was told this by some members of the 31, one of whom even referred to the ABC. This is disputed and further witness statements have been served in relation to this issue. (2) Ms Smith has made a statement in which she says that the members of the Executive Council were told before they elected the defendant as chair that he could be removed by a simple majority. The defendant says that he does not recall such a discussion, but Rafiq Moosa Mohammed, another member of the 31, says that he does. (3) Stephen Pinder, the union’s legal director, has made a statement in which he says that he advised the Executive Council at its meeting on 10 March 2025 that a two-thirds majority would be required for the removal direction to be passed. (4) It appears that, in making this statement, Mr Pinder was relying on advice which had been obtained from counsel, Mr Bogg, although Mr Bogg said no more than that it was an arguable point.

28. None of these statements have any bearing on the issue of construction which I have to decide, nor have the opinions which were obtained before and after the passage of the removal motion.

29. As I will explain, there may be some significance to be attached to the following evidence. The members of the Executive Council were elected for a three year term and they appointed the defendant as their chair at their first meeting following that election. However, there had been issues concerning the election of three representatives from the civil air transport industry sector as members of the Executive Council. That election had been suspended and therefore only 58 of the 61 seats on the Executive Council had been filled at the time of its first meeting. The returning officer said as follows in a report to that meeting: “I am aware that it may concern CAT industrial sector members that they will not have representatives participating in the appointment of the Chair that is required in accordance by Rule 14.7 at the first meeting of the newly elected Executive Council. However, I also note that this rule does also provide the Executive Council with the power to “remove or replace its Chair at any time”.”

30. It is also relevant to note that the request for a special meeting of the Executive Council set out the terms of the removal motion, but did not give any reasons for proposing the removal motion. Having said that, Matt Gould, who proposed the removal motion, sent an email shortly afterwards, on 26 February 2025, to the defendant, copied to the other members of the 31, in which he said that the defendant was engaged in a desperate attempt to cling on to his position as chair and to subvert the rules and democracy of the union. He accused the defendant, inter alia, of having systematically abused the two-thirds majority requirement to overturn the chair’s ruling and he said that, “… a majority of the EC feel that it is now vital that you are removed from your position with immediate effect, …”.

31. Moreover, Ms Smith’s evidence is that: (1) The request for a special meeting was primarily precipitated by a procedural ruling made by the defendant in relation to motions from the floor in Executive Council meetings: see paragraph 40 of her first statement. (2) The request was submitted because the members of the majority of the Executive Council were convinced that, if the defendant were to stay in place as chair of the Executive Council, then they would never be able to effectively govern and oversee the union as an Executive Council: see paragraph 65 of her first statement.

32. I have read the defendant’s response to these criticisms of his conduct and I express no opinion either way, since they are irrelevant to the question which I have to decide.

33. In addition, Mr Mohammed said in paragraph 14 of his witness statement that he voted for the removal motion because he believes that the defendant has been using his position as chair to obstruct and frustrate the Executive Council in getting proper oversight and control over the current financial affairs of the union. Furthermore, he said in paragraph 24 of his witness statement that all of his communications with the other members of the 31 have given him the firm impression that the 31 are all acting out of the same concerns relating to the current administration of the union that he has outlined in his statement. He added in paragraph 35 that the underlying reasons for the vote to remove the defendant arise from concerns that he is obstructing the Executive Council in carrying out its functions of financial oversight and control.

34. A note has been prepared of the meeting on 10 March 2025. The contents of this note are disputed. There are no minutes of the meeting, let alone approved minutes. According to the note, the proposer of the removal motion, Mr Gould, did not make a speech in support of the motion and the only members of the Executive Committee who spoke in favour of the removal motion were: (1) Eddie Cassidy, who said that the defendant “had to go because he was not doing his job”; and (2) Ms Smith, who said that the defendant “… needed to go because he had allowed criticism of EC members over the failures of governance, including the Birmingham hotel.” (8) Some Common Ground

35. Both parties referred to the principles stated by Eady J in paragraph 19 of her judgment in Embery v Fire Brigades Union [2023] EAT 134, as follows: “(1) A trade union’s rulebook is in law a contract between all of its members from time to time (Heatons Transport (St Helen’s) Ltd v Transport General Workers Union [1972] IRLR 25, [1972] ICR 308; Evangelou and ors v McNicol [2016] EWCA Civ 817, paragraph 19; Kelly, paragraph 36(1)). (2) As such, it must be interpreted in accordance with the principles which apply generally to the interpretation of contracts (Evangelou, paragraph 20; Kelly, paragraph 36(2)). (3) Nevertheless, context is important. Trade union rule books are not drafted by parliamentary draftsmen and should not be read as if they were. Further, unlike commercial contracts, it is not to be assumed that all the terms of the contract will be found in the rule book alone (particularly as regards the discretion conferred by the members upon committees or officials of the union as to the way in which they may act on the union’s behalf) and may be informed by custom and practice developed over the years (Heatons Transport per Lord Wilberforce at pp 393G-394C; Kelly, paragraph 36(3)). (4) It is also important to recall that what falls to be construed in this context is in substance the constitution of a trade union. Although in law its status is that of a multilateral contract, it is the document which sets out the powers and duties of a trade union (Evangelou, paragraph 19; Kelly, paragraph 36(4)). (5) The rules of a trade union should thus be given an interpretation which accords with what the reasonable trade union member would understand the words to mean; a court should be slow to adopt a construction which, on the face of it, is contrary to what both the members and common sense would have expected. …”

36. In addition, the following propositions were common ground, as counsel helpfully confirmed: (1) The rules themselves do not prescribe the majority required for a removal motion to be carried. (2) The standing orders proceed on the assumption that a motion requires only a simple majority to be passed, save where expressly provided to the contrary, as in standing order 7.5, which concerns a challenge to a ruling by the chair, and 9.1, which concerns a motion to suspend the standing orders. (3) Standing order 7.6 incorporates the normal rules of debate as laid down in the ABC into the standing orders, subject to the qualification, “Save as provided herein”. (4) The only provision which arguably provides for a two-thirds majority for the removal motion is the no confidence paragraph in the ABC. (5) When it applies, the effect of the no confidence paragraph is that a two-thirds majority would be required to pass a motion in the form, “That this meeting has no confidence in the chair”. (9) Submissions

37. The parties’ submissions are set out in full in their skeleton arguments, which I need not repeat. In summary, Mr Brittenden submitted that: (1) Standing order 7.6 is mandatory, since it includes the word “shall” and it applies to all business of the Executive Council. (2) In the context of the present case, there is nothing for the words “Save as provided herein” to bite on. (3) The two-thirds majority requirement in the no confidence paragraph applied to the removal motion. It was one of the rules of debate set out in the ABC. (4) It is plain that the removal motion was a vote of no confidence. (5) The alternative position would render the provisions of the standing orders incongruent and incoherent, since standing order 7.5 requires a two-thirds majority for a challenge to a ruling by the chair, yet this could be undermined if only a simple majority was required to remove the chair.

38. Mr Jupp submitted, in summary, that: (1) Rule 14.7 gives the Executive Council the power to remove the chair for any reason or for no reason. It is not limited to removing the chair on no confidence grounds. For instance, it could be based on factional grounds or the defendant could have been removed shortly after he was appointed because this was thought fit in circumstances where some members of the Executive Council had been unable to take part in the vote to appoint him. Nor does rule 14.7 prescribe the majority required to remove the chair. (2) The removal motion was not a motion of no confidence. It did not state any reason for removing the chair, let alone that the reason was that the Executive Council had no confidence in the chair. (3) The issue whether the removal motion was a motion of no confidence has to be resolved, and can only be resolved, by considering the words used in the motion and what they objectively mean. (4) No doubt some members of the Executive Council who voted in favour of the removal motion were dissatisfied with the performance of the defendant as chair, but the Executive Council is factional and it is just as likely that many who voted had no strong view one way or the other, but considered that, because the defendant was in the opposite faction, he had to go. (5) Standing order 3 is where any regulation of the power to remove the chair would have been found. Standing order 7, which is headed “Conduct of Business”, is concerned with the conduct of business in the Executive Council meeting and does not circumscribe or regulate the substantive rules. (6) The no confidence paragraph is not one of the “normal rules of debate” set out in the ABC. (7) The no confidence paragraph is concerned with the situation which arises when things have degenerated in a meeting to such an extent that the meeting, not the body itself, has lost confidence in the chair. The no confidence paragraph does not apply to a no confidence motion proposed at a meeting subsequent to the meeting at which the proposer claims to have lost confidence in the chair. (8) As recognised in the ABC, a no confidence motion obliges the chair to resign, whereas rule 14.7 empowers the Executive Council to remove the chair, such that removal would be automatic on the passing of a removal motion.

39. Since this is an ex tempore judgment, it may be that I have not mentioned every point which was raised, but I confirm that I have taken account of all the submissions made to me. (10) Decision

40. Let me make some preliminary observations. Some committees do not have the power to choose their own chair. However, where a committee has power to appoint its own chair, then, in the absence of any provision to the contrary, it is to be inferred that it also has the power to remove the chair. Mr Jupp agreed with my suggestion that the Executive Council would have had an implied power to remove the chair even if rule 14.7 did not contain the words, “to remove and replace its chair at any time …”. The ABC recognises that the conventional means of exercising the power to remove the chair of a committee is by means of a vote of no confidence.

41. I turn to Mr Jupp’s argument that the no confidence paragraph is not incorporated into the standing orders because it is not one of the “normal rules of debate” laid down in the ABC. I do not accept that argument. I have already noted that the ABC contains a mixture of things. Not all of them can be said to constitute rules of debate, but chapter 13, which is headed, “Points of Order, the Right of Reply and Suspension of Standing Orders” clearly concerns aspects of debate. Rulings by the chair and challenges to those rulings also concern aspects of debate, as does any motion whose effect will be that the chair ceases to be the chair.

42. The effect of the no confidence paragraph is to set out a rule that, at least in the case of a committee which has adopted a standing order of the kind recommended in the preceding paragraph, which requires a two-thirds majority for a challenge to a ruling by the chair, a two-thirds majority is required for a motion of no confidence to be passed and for the chair to be compelled thereby to resign. Although not stated, the reason for this rule is presumably that it would be incongruous to require a two-thirds majority for a challenge to a ruling by the chair, but to allow the chair to be removed by a simple majority on a motion of no confidence.

43. I do not consider that there is any material difference for this purpose between the standing order recommended in the ABC and standing order 7.5 in the present case. Both require a two-thirds majority if a challenge to a ruling by the chair is to succeed. I do not accept Mr Jupp’s submission that the rule laid down in the no confidence paragraph only applies to a no confidence motion proposed at the meeting at which the chair makes a disputed ruling. The paragraph applies “If things have got to the stage” where a no confidence motion is passed by a two-thirds majority. It does not say that that stage has to be reached in one meeting rather than another. It would be a strained interpretation indeed of the ABC to read it as meaning that, if the chair makes a ruling to which committee members object, a motion of no confidence would require a two-thirds majority if proposed at that meeting, but only a simple majority if proposed at a subsequent meeting, perhaps only a week or so later.

44. In this context, I do not attach any significance to the use of the phrase “this meeting”, rather than “this committee”, in the no confidence motion in the ABC or to the use of the phrase “the Executive Council”, as opposed to “this meeting”, in the removal motion. The substance of the motion is the same in either case.

45. I do not accept Mr Jupp’s submission that standing order 7 is concerned with the conduct of business in the Executive Council meeting and does not circumscribe or regulate substantive rules. The standing orders regulate how the Executive Council goes about its business of making decisions in the exercise of the powers conferred by the rules. As standing orders 7.5 and 9.1 demonstrate, this can include requiring greater majorities for some issues than others. There is no reason in principle why the standing orders could not have included on their face an express provision which required a two-thirds majority for the passing of a motion to remove the chair. The question for me is whether the standing orders have achieved the same effect by incorporating the rules of debate set out in the ABC.

46. Mr Jupp attached considerable significance to the fact that rule 14.7 gives the Executive Council express power to remove its chair but, in my judgment, that is, as I have already said, merely spelling out what would be implicit in any event, in the absence of provision to the contrary.

47. I turn next to the question whether the removal motion was a motion of no confidence. I agree with Mr Jupp that this is to be decided by considering the motion itself and not by considering evidence as to the motives of those who proposed it or voted for it. However, if I am wrong about that, there is, perhaps unusually, ample evidence in this case, provided by the 31 themselves, and I find that their reason for proposing and for voting for the removal motion was that they had no confidence in the defendant as chair of the Executive Council. I refer in particular to Mr Gould’s email and the passages from Ms Smith’s and Mr Mohammed’s statements to which I have already referred.

48. Mr Jupp sought to distinguish between a removal motion, on the one hand, and the reasons for voting for it, on the other hand. He suggested that the reason for voting for a removal motion could be because the council has no confidence in the chair or it could be some other reason. In particular, he suggested that factionalism, rather than a lack of confidence, could be a reason for voting for a removal motion. I note that factionalism and lack of confidence are not mutually exclusive alternatives. For instance, the House of Commons’ vote of no confidence in the Labour government in 1979 was conducted on entirely party lines. When a member of the majority faction on a committee votes for the removal of the chair because the chair is not a member of the majority faction, that can be seen as the member having no confidence in the chair because he is not a member of the majority faction. Likewise, a motion that the chair be removed because some members of the Executive Council had been unable to take part in the vote to appoint him could be seen as a motion that the Executive Council had no confidence in him because of the circumstances of his election.

49. In my judgment, the no confidence paragraph in the ABC recognises the fact that a vote of no confidence in a chair was and is the conventional means for a committee to indicate its decision that the chair must cease to be chair. It is implicit in a no confidence motion that those who voted for it wished to remove the chair from office. The same was true of the removal direction in the present case. In each case, no further enquiry into the committee members’ reasons is required.

50. I do not attach any significance to the distinction between automatic removal of the chair or removal of the chair by compelling him to resign. In the present context, that is simply a matter of the mechanics of giving effect to a decision that the chair should be removed from office. (11) Conclusion

51. For all of these reasons, I have concluded that the defendant is right to say that the no confidence paragraph was incorporated into the standing orders and that it had the effect of requiring a two-thirds majority for the removal motion to be passed. —————