No, held the Court of Appeal in Bone v North Essex NHS Trust
Mr Bone claimed he had been prevented from taking part in activities of an independent trade union. The employment tribunal upheld the claim. The EAT allowed the appeal on the basis that Mr Bone's union was not 'independent' and accordingly the employment tribunal did not have jurisdiction.
The Court of Appeal overturned the EAT's decision on the grounds that the issue of 'independence' was a constituent element of Mr Bone's claim and not a jurisdictional one. The employer never disputed the union was independent at the employment tribunal and the EAT erred in allowing a new line of defence. The matter has been remitted back to the EAT.
The Court of Appeal also found that a certificate of independence is retrospective in its effect for a reasonable period before the date of the certificate.