Victimisation

Individual union members have protection against victimisation by their employer. They have the right not to have action short of dismissal (for example, suspension) taken against them, together with the right not to be dismissed because of membership of a trade union (see Chapter 10: Automatically unfair dismissals) and not to be selected for redundancy for that reason (see Chapter 11: Selection for redundancy).

Workers and employees are protected against victimisation for:

• taking part in or proposing to take part in the activities of an independent trade union at an appropriate time (section 152 TULRCA); and

• because of their union membership (section 146 TULRCA).

“Activities” has a wide meaning which includes taking part in union meetings (BA v Francis [1978] ICR 278) and recruitment activities (Brennan v Ellward [1976] IRLR 378).

The employer’s express or implied consent is needed for activities that take place during working hours, but that consent cannot be conditional on the union not criticising the employer:

Dismissal because an employee has been an active union member in a previous job is unfair and a breach of section 152 of TULRCA (Fitzpatrick v British Railways Board [1991] IRLR 376). The key issue is why the employer dismissed the employee.

In another example, Lindsay v General Contracting EAT/1126/00, Lindsay was dismissed shortly after joining a union. Her employer denied the dismissal was related to union membership, claiming it was because of timekeeping, but Lindsay successfully argued that it was only after she had joined the union that her employer started complaining about her timekeeping. The EAT agreed that the dismissal was for trade union reasons.

In MANCAT v Smith UKEAT/0460/06, a tribunal concluded that a college principal’s hostility to the claimants was motivated by animosity towards them because of their trade union activities.

A decision to decline to recognise a shop steward who has been accredited by the union can amount to action short of dismissal for the purpose of deterring the individual from taking part in union activities (Farnsworth v McCoid [1999] IRLR 626).

An employee carrying out trade union duties at an appropriate time who is disciplined on account of those activities, is unlawfully victimised (LB Islington v Hutchings EAT/34/01).

However, according to the Court of Appeal in Gallacher v Department of Transport [1994] IRLR 231, an employer’s refusal to promote someone on the grounds that their trade union duties had prevented the individual from acquiring relevant experience is not covered.

The Court of Appeal held that withholding a pay rise from an employee until such time as she agreed to give up her union duties was unlawful victimisation. The employer’s argument that it had not taken action against her, but rather had merely “omitted” to take action in her favour, was rejected (LB Southwark v Whillier [2001] ICR 1016).

There is no protection against action short of dismissal for taking lawful industrial action, as was illustrated by the case of BA cabin crew whose travel benefits were stripped from them by their employer when they took lawful industrial action in 2010.

Victimisation claims must be issued in the tribunal within three months of the date when the action complained of occurred. If the claim is upheld, the tribunal will order the employer to pay compensation that is “just and equitable”. Under new rules introduced in April 2014, the first step in any tribunal claim is to contact Acas for early conciliation. Contacting Acas became compulsory from 6 May 2014 (see Chapter 1). However, reps should be aware that the new Acas early conciliation procedure does not apply to applications for interim relief (see page 138).

There is no length of service requirement to pursue a claim for trade union victimisation. If the victimisation results in a dismissal, a minimum of £5,676 (2014-15) basic compensation will be awarded. In addition the tribunal can make a compensatory award of up to 52 weeks’ wages, capped at £76,574 (2014-15), which could include damages for injury to feelings. The EAT, in the case of LB Hackney v Adams [2003] IRLR 402, held that damages for injury to feelings are as relevant in trade union cases as in any other field of discrimination law.

The limits to the legal protection available to reps are illustrated by the following case, which involved an NHS Trust censured by an employment tribunal for opting “to use public money allocated to the Health Service to flout an order of the tribunal” by paying the maximum compensation sum in order to avoid re-engaging the claimant: