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Victimisation
Individual members of unions have protection against victimisation from 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 the right 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 to activities that take place during working hours but an employer’s argument that its consent was conditional, for example, on the union official not criticising the company, received short shrift in this case:
The claimant was a trainer-manager at an induction for new trainee licensee managers. He was also allowed to give the presentation on behalf of the union on the first day of the induction to recruit new members. At the meeting, by his own admission, he went “over the top” criticising the company and suggesting that in the event of attack or personal injury, licensees should look to the union as they could not rely on the company.
As a result, he was demoted and his responsibility for giving trainer-manager talks to new licensees was taken away. The Court of Appeal found that the employer’s actions were unlawful because Burgess was engaged in union activities at an appropriate time. It was ludicrous to suggest that the company’s consent was subject to an implied condition that he would not criticise the company or undermine “harmonious relations”.
Burgess v Bass Taverns Limited [1995] EWCA Civ 40
In an important ruling in 1991, the Court of Appeal said that dismissal because an employee had been an active union member in a previous job was unfair and fell within the protection afforded by section 152 of TULRCA (Fitzpatrick v British Railways Board [1991] IRLR 376). The key issue is why the employer dismissed the employee.
Ms Lindsay was dismissed shortly after joining a union. Her employer denied the dismissal was anything to do with her union membership, claiming it was because of her timekeeping. 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 this amounted to a dismissal for trade union reasons.
Lindsay v General Contracting EAT/1126/00
In Miller and others v Interserve Industrial Services Limited ([2012] UKEAT/0244/12/SM), the EAT accepted that a highly unionised firm’s refusal to employ three shop stewards nominated by Unite was not because of their union membership but instead was because the site manager wanted to “make a stand” against a union official he thought was “interfering” in his decision who to recruit. By contrast, in MANCAT v Smith & others (UKEAT/0460/06), evidence of a college principal’s hostility to the claimants allowed a tribunal to conclude that he was motivated by animosity towards them because of their trade union activities.
If an employer decides to no longer recognise a shop steward who has been accredited by the union, this 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 his/her 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 does not fall within the protection.
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 amounted to unlawful victimisation. The employers argued that they had not taken action against her, but that they had merely “omitted” to take action in her favour, but the Court rejected this explanation (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 go to the tribunal within three months of the date when the action complained of occurred, and if the claim is upheld the tribunal will order the employer to pay compensation that is “just and equitable”. There is no length of service requirement to pursue the claim. If the victimisation results in a dismissal, a minimum of £5,500 (2013-14) basic compensation will be awarded. In addition the tribunal can make a compensatory award of up to £74,200 (2013-14), 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 case of The Queen on the application ofYunus Bakhsh v Northumberland Tyne & Wear NHS Foundation Trust ([2012] EWCH 1445) (see Chapter 10) highlights the inadequacy of legal protection for reps, especially if the employer is implacably opposed to lawful trade union activities. In this case, the employer, an NHS Trust, used public funds to pay the maximum (capped) statutory compensation to UNISON member and trade union activist Yunus Bakhsh to avoid complying with a re-engagement order.