There are circumstances which may leave an individual wondering if a professional negligence claim can be brought against their trade union. This will typically arise where the union has advised or represented a member in a dispute with an employer such as a claim for unfair dismissal.
The question may be determined by considering whether the union owes a duty of care to its members. Consideration of the rules applicable to the union in question may help determine whether there is any contractual duty. However, there is a duty in tort requiring a union to exercise ordinary skill and care when advising or representing a member in an employment dispute.
It may often be relatively straightforward to identify a breach of duty by a union representative. This could be as simple as failing to advise of the need to make a claim to the Employment Tribunal within the time limits prescribed. A failure in this regard will in the majority of circumstances be fatal to a claim and it is likely to be considered that the exercise of “ordinary skill and care” would extend to being able to advise correctly as to basic time limits in the Tribunal.
However, “ordinary skill and care” may not require a union representative to provide complex or technical legal advice. It is adjudged that the union is neither responsible nor competent to give advice then there is unlikely to be a duty.
The duty of care would come to an end on instruction of a solicitor for the member, even if the member gives instructions to the solicitor through the union. The exception to this position may arise if the union fails to properly communicate those instructions to the solicitor.
So, by way of an example, if a union representative fails to advise a member seeking advice to bring a claim for unfair dismissal in the Employment Tribunal that the claim must be made to the Tribunal within 3 months of dismissal, the union is likely to be in breach of its duty assuming a solicitor has not been instructed. These circumstances may give rise to a claim for compensation against the union.
By contrast, a claim is unlikely to exist against a union in the same circumstances with the difference that solicitor is appointed to act for the member and it is the solicitor who fails to advise correctly as to the 3 month time limit. In such circumstance there is likely to be a claim against the solicitor.
For general principles applicable to this issue see Friend v Instituion of Professional Managers & Specialist  IRLR 173 at 173.