Dismissals and trade union membership 





Section 152, TULRCA protects employees from dismissal because they are, or propose to become, a member of an independent trade union, or to take part in its activities at an appropriate time. An appropriate time is:


• outside working hours; or 





• during working hours with the employer’s consent (which may be recorded, for example, in a facility agreement). 





A management-grade employee who was also a rep was automatically unfairly dismissed under section 152, TULRCA for advising new employees during an induction session that their only safeguard lay with the union (Burgess v Bass Taverns Ltd [1995] EWCA Civ 40). 





“Activities” should be interpreted broadly and in a common sense way (BA v Francis [1981] ICR 278, Morris v Metrolink RATP DEV Limited [2018] EWCA 1358). It includes taking part in union meetings. However, it does not include taking part in industrial action (see below). 


The manner in which activities are carried out is irrelevant to the question whether they are “trade union” activities, as long as the employee is not dishonest, acting in bad faith, or carrying out activities for some purpose unrelated to the trade union (Bass Taverns Limited v Burgess [1995] EWCA Civ 40, Mihaj v Sodhexho [2014] UKEAT 0139/14). 





Employees are protected by section 152, TULRCA if they are dismissed for asking for union assistance in relation to their employment (Speciality Care v Pachela [1996] IRLR 248). 





They are also protected if they are dismissed for refusing the offer of an inducement not to join a trade union or to engage in lawful union activities, or for refusing any offer that is intended to stop their terms being negotiated through collective bargaining, in breach of section 145(A) or (B) of TULCRA (see Chapter 5).





Any conduct or action by the employee that relates to the employer’s demand that the employee cease to be a member of a union, participate in union activities or access union services must be disregarded when assessing contributory fault (section 155, TULRCA).





Anyone who is dismissed for trade union reasons should immediately seek the support of their union to use the interim relief procedures in section 161, TULRCA. Any claim for interim relief must be submitted to the tribunal within seven days of dismissal. For information on making an interim relief application, see Chapter 5.


See also Chapter 5: trade union victimisation.