Protection of union members from victimisation 




There are several statutory provisions intended to protect union members from victimisation relating to their union membership and activities. They are available whether or not the union is recognised at the member’s workplace. 




Under section 137, TULRCA, there is a statutory right for any person not to be refused work because of union membership or non-membership, or because of a refusal to leave or join a union. The EAT has held that a refusal to hire a known trade union activist because he was believed to be “uncooperative and anti-management” came within the definition of unlawful victimisation on grounds of union membership (Harrison v Kent County Council [1995] ICR 434). 


In Jet2 v Denby [2017] UKEAT/0070/17/LA, the EAT confirmed that union “membership” under section 137 is not limited to the fact of membership. Instead it includes the refusal of work because of union activities, since these activities are the “outward manifestation” of membership. There is still protection even if the person is no longer a member of a trade union by the time they are refused employment, as long as part of the reason for refusing employment is their union activities while still a member (Denby). 


Trade union membership need not be the only, or even the main reason for the detriment or dismissal in order for the employer to be liable. It is enough that it forms a significant part of the employer’s thought process (conscious or subconscious) when deciding to refuse work (Miller & Ors v Interserve Industrial Services Ltd [2012] UKEAT/0244/12/SM).


Under section 138, TULRCA, it is unlawful for an employment agency to refuse services for trade union-related reasons.




Under section 146, TULRCA, it is unlawful to subject a worker to a detriment for the purpose of deterring, or penalising him or her for: 




• taking part in or proposing to take part in the activities of an independent trade union at an appropriate time; 




• making use of trade union services at an appropriate time; or




• being a trade union member.




This protection was originally available only to employees. It was extended to workers by the Employment Relations Act 2004, after the European Court of Human Rights ruled that the UK was in breach of Article 11 of the European Convention on Human Rights by failing to protect workers (for example, agency workers) engaged in lawful trade union activities (Wilson and Palmer v The UK [2002] IRLR 568).




Former employees and workers are also protected (section 146(5), TULRCA, Woodward v Abbey National PLC [2006] EWCA Civ 822, Smith v Carillion (JM) Limited [2015] EWCA Civ 209).


Under section 152, TULRCA, union members who are employees are also protected from dismissal because of their trade union membership or for taking part in trade union activities at an appropriate time (see Chapter 10: Automatically unfair dismissals) and from being selected for redundancy for that reason (see Chapter 11: Selection for redundancy). 




“Activities” has a wide meaning and includes taking part in union meetings (BA v Francis [1978] ICR 278) and recruitment activities (Brennan v Ellward [1976] IRLR 378). They must be activities of the union, not just activities of an individual who happens to be a union member (Drew v St Edmondsbury Borough Council [1980] ICR 513). 


“Activities” does not include taking part in industrial action, but section 238 of TULCRA provides some separate limited protection from dismissal for employees engaged in lawful industrial action (see Chapter 10: Dismissal and industrial action, page 344). 


Although there is limited statutory protection from dismissal for participating in lawful industrial action, there is no express statutory protection from detriment short of dismissal, for example the withdrawal of travel privileges from striking cabin crew workers during the BA cabin crew dispute (see Chapter 6, page 187). 


Employers sometimes argue that a union member was disciplined not because they were carrying out trade union activities but because of the way they went about it. However, courts have ruled that the manner in which activities are carried out is irrelevant when deciding whether they are trade union activities, unless they are carried out dishonestly, in bad faith, or for an unrelated purpose (Bass Taverns Limited v Burgess [1995] EWCA Civ 40, Mihaj v Sodhexho [2014] UKEAT 0139/14). The recent case of Jet2 v Denby [2017] UKEAT/0070/17/LA, is a helpful ruling here, since it confirms that the outward “manifestation” of union activities is part and parcel of union membership. 




“Membership” has been interpreted broadly (Discount Tobacco and Confectionery Limited v Armitage [1995] ICR 431) to include approaching a trade union officer for help to understand and negotiate contract terms. In that case, the employee was unlawfully dismissed because the employers resented the union intervening on her behalf. 




An “appropriate time” is outside working hours, or during working hours with the employer’s agreement (section 146(2), TULRCA), which may be recorded in a facility agreement. Lunch and tea breaks are usually outside working hours (see Chapter 4: Working Time). 




Although the employer’s express or implied consent is needed for activities during working hours, that consent cannot be conditional on the union not criticising the employer. For example:




Protection under sections 146 and 152, TULRCA is available whether or not the member’s union is recognised, and regardless of whether another union is already recognised in the workplace. However, protection is only available if the union is independent (Bone v North Essex Partnership NHS Hospital Trust [2014] EWCA Civ 652). Independence is decided by the Certification Officer.




An employer will only breach section 146, TULRCA if its main purpose in acting is to deter or punish the worker for engaging in union activities. In Gallacher v Department of Transport [1994] IRLR 231, the Court of Appeal ruled that a refusal to promote someone because time spent on trade union duties had prevented them acquiring relevant experience was not trade union victimisation. Although the effect of the refusal was to deter Gallacher from engaging in his union duties, this was not the employer’s main purpose, so his section 146 claim failed.




Deleting a post from a planned restructuring in circumstances where the trade union rep who had led objections to the restructuring stood a good chance of getting the deleted post was a detriment under section 146 (University of Bolton v Corrigan [2015] UKEAT 0408/14/RN).



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




Making reinstatement conditional on giving up lawful trade union activities was trade union victimisation in Baksh v Northumberland and Tyne & Wear NHS Foundation Trust [2012] EWHC 1445.


Organising to promote recognition is specifically protected under TULRCA. It is unlawful to subject a worker to a detriment or dismissal for promoting recognition or derecognition, provided the worker’s actions are “not unreasonable” (Schedule A1, Part VIII, paras 156 to 161, TULRCA). 



Dismissal because an employee was an active union member in a previous job is a breach of section 152, TULRCA (Fitzpatrick v British Railways Board [1991] IRLR 376). 




In Lindsay v General Contracting Limited t/a Pik A Pak Home Electric EAT/1126/00, Ms Lindsay was dismissed shortly after joining a union. Her employer denied that the dismissal related to union membership, claiming it was due to timekeeping, but Lindsay successfully argued that her employer only started complaining about her timekeeping after she joined a union. The EAT agreed that the dismissal was for trade union reasons.




Under section 44, ERA 96, employees (but not workers) appointed as union safety reps have extra statutory protection from victimisation or dismissal for carrying out safety rep functions. In Smith v Carillion (JM) Limited [2015] EWCA Civ 209, the Court of Appeal refused to extend this protection to workers, such as agency workers, as well as employees.
Some agency workers penalised for acting as safety reps may be able to bring claims under the Public Interest Disclosure Act 1998 (see Chapter 13: Whistleblowing). 


Claims must be brought within three months of the date of the action complained of. The tribunal can order the employer to pay “just and equitable” compensation. The first step in all tribunal claims (except a claim for interim relief — see below) is to submit an Acas Early Conciliation (EC) Notification Form. This first step is compulsory and must be taken within the time limit for bringing the claim. For more information, see Chapter 14.




There is no length of service requirement for a claim for trade union victimisation. If the victimisation results in dismissal, a minimum basic award of £6,203 (from April 2018) will be made. In addition, the tribunal can make a compensatory award, capped at the lower of 52 weeks’ gross wages or £ £83,682 (from April 2018).



Damages for trade union detriment can be awarded for injury to feelings (Cleveland Ambulance NHS Trust v Blane [1997] ICR 851). The EAT, in the case of London Borough of Hackney v Adams [2003] IRLR 402, ruled that damages for injury to feelings are as relevant in trade union cases as they are to cases of unlawful discrimination under the Equality Act 2010 (see Chapter 7). 



A claim for detriment on account of trade union activities under section 146, TULRCA must be heard by a full tribunal panel, including lay members (Birring v Michael Rogers and Carolyn Moore t/a Charity Link [2015] UKEAT/0388/14/RN).