The National Executive Committee stated at the last minute that this would be a qualification for office, although that did not appear in the rules, nor in a resolution by the Annual Delegate Meeting.
Smith J held that the NEC's extra requirement was unlawful at common law and under statute.
Because it was something done hastily and at the last minute, it was not clear and prospective, and could not therefore be adopted compatibly with the democratic nature of the union.
The action was also unlawful under TULRCA 1992 section 47, because that precludes unreasonable or unfair criteria and NEC confidence is an ‘essentially subjective method’.
The actions of this NEC fell outside the scope of the discretion provided by the rules because they did not act in accordance with good employment practice.