8. The right not to be victimised

The law

Union representatives and union members have a legal right not to be victimised or dismissed for exercising their rights to time off. Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92), gives employees the right “not to be subjected to any detriment” by an act or deliberate omission on the part of their employer — provided that the purpose is to prevent or deter them from joining or taking part in union activities. To come within the protection:

• the individual needs to be an employee;

• the union needs to be independent; and

• the activities have to have been carried out “at an appropriate time”.

“Appropriate time” is defined in section 146(2) as either:

• outside working hours; or

• in working hours either agreed by the employer or set out in the agreement on time off.

Section 44 of the Employment Rights Act 1996 (ERA 96) protects safety reps from detrimental treatment if it is because they are carrying out (or propose carrying out) the functions of a safety rep.

Regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999 (TICE Regs 99), provides similar protection to members and candidates for membership of EWCs, if they are dismissed for making a time off request. Regulation 31, TICE Regs 99, makes detrimental action taken on the grounds of the individual having made a request for time off unlawful.

Similarly, Regulations 29-33 of the Information and Consultation of Employees Regulations 2004 (ICE Regs 04), protect employee representatives (whether that be during negotiations with an employer, during a ballot, or once the forum has been established) from suffering a detriment. Specifically, an individual who has been involved in an application under the ICE Regs 04 (for example, voting in a ballot or standing as a candidate) will be entitled to bring a claim — irrespective of his or her length of service: section 108 of the Employment Rights Act 1996.

Section 47 of the Employment Rights Act 1996 (ERA 96) provides a similar level of protection to employee representatives in workplaces without recognition (see Chapter 5: The rights of representatives in workplaces without recognition). It says that an employee has the right not to be subjected to any detriment (whether that be by the employer’s action or deliberate omission) on the grounds of being an employee representative (or candidate for such office) during a TUPE or redundancy exercise.

Section 103, ERA 96 makes it automatically unfair to dismiss an employee if the reason is to do with performing (or proposing to perform) any functions or activities of an employee representative or a candidate for such office.

There are a number of ways in which employees could be victimised for exercising their rights to time off. The most common problem is not where the employer directly victimises the employee at the time the right is exercised. Instead it is where the employer uses the fact that someone has had time off, in order to deny them a benefit.

An employer may try to argue that the amount of time off a rep has had means they lack the experience of the day-to-day work and are therefore unsuitable for promotion. This can be a particular problem in workplaces where reps have 100% facility time. In the case of Gallacher v Department of Transport [1994] IRLR 231, [1993] ICR 654 the employers successfully used this argument to refuse promotion.

One way to deal with the issue is to include in the agreement, provision for regular training to upgrade the skills of union reps who have to spend a lot of their time on union duties. In this way they can be kept up to date with developments in their field of work and get the same opportunities to compete for promotion.

Another area of potential difficulty is over selection for redundancy, as the case of Dundon v GPT [1995] IRLR 403 demonstrates.