Protection of union members from victimisation 





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





Under section 137, TULRCA, a person is entitled not to be refused work because of union membership or non-membership, or because of a refusal to leave or join a union. In Harrison v Kent County Council [1995] ICR 434, a refusal to hire a known trade union activist because he was believed to be “uncooperative and anti-management” amounted to unlawful victimisation on grounds of union membership. In the case below, the EAT ruled that the right to freedom of association under Article 11, ECHR (see page 139) required union “membership” under section 137 to be given a wide meaning, to include activities incidental to union membership. These activities, such as campaigning for recognition, were described by the EAT in the next case as the “outward manifestation” of union membership:


There is protection even if the person is no longer a union member when they are refused employment, as long as the reason for refusal relates to their union activities while still a member. In addition, union membership need not be the only, or even the main reason for the refusal of work under section 137, as long as it is a significant influence on the employer’s thought process (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 union-related reasons.





Under section 145A, TULRCA, it is unlawful for an employer to offer an inducement not to join (or to join) a union, take part in union activities, or use union services, or to join a union or any particular union. 


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 union services at an appropriate time; or





• being a 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’s failure to protect agency workers engaged in lawful union activities was a breach of Article 11, ECHR (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, employed union members are 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 this reason (see Chapter 11: Selection for redundancy). 





“Activities” has a wide meaning (Morris v Metrolink RATP DEV Ltd [2018] EWCA Civ 1358). It includes taking part in union meetings (BA v Francis [1978] ICR 278) and recruitment activities (Brennan v Ellward [1976] IRLR 378). The following new Court of Appeal ruling shows that tribunals are expected to take a broad, pragmatic approach to the question what are trade union activities: 


To trigger protection, activities 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 (although not from action short of dismissal) for employees engaged in lawful industrial action (see Chapter 10: Dismissal and industrial action, page 360). 



Employers sometimes argue that a union member was disciplined not because they were carrying out 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, Jet2 v Denby [2017] UKEAT/0070/17/LA). 





“Membership” has also 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 employer 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). That agreement 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, consent cannot be conditional on the union not criticising the employer:





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, the union must hold a Certificate of Independence from the Certification Officer (Bone v North Essex Partnership NHS Hospital Trust [2014] EWCA Civ 652).





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 meant they lacked managerial experience was not trade union victimisation. Although the effect of the refusal was to deter Mr Gallacher from engaging in union duties, the employer was not motivated, in refusing to promote him, by a desire (even if subconscious) to deter him from engaging in union activities, so his section 146 claim failed.


In University of Bolton v Corrigan [2015] UKEAT 0408/14/RN, deleting a vacancy that was suitable for the union rep who had led objections to a planned restructuring was a detriment under section 146. There was clear evidence of hostility to unions, and the employer could not explain why they deleted the post if it was not with the aim of removing the union rep.




In London Borough of Southwark v Whillier [2001] ICR 1016, withholding a pay rise until an employee agreed to give up her union duties was a trade union 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.


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


It is unlawful to subject a worker to a detriment or dismissal for promoting recognition or derecognition, as long as 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 showed that the complaints about timekeeping only started after she joined a union. The EAT agreed that the dismissal was for 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 temporary agency workers).



Agency workers who are penalised for acting as safety reps may be able to bring whistleblowing claims under the Public Interest Disclosure Act 1998 if they suffer a detriment for making a protected disclosure about health or safety (see Chapter 13: Whistleblowing). 



Claims must be brought within three months (less one day) 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 page 166) is to submit an Acas Early Conciliation (EC) Notification Form. For more information, see Chapter 14.





There is no length of service requirement for a claim for trade union detriment. If there is a dismissal, a minimum basic award of £6,408 (from April 2019) will be made. In addition, the tribunal can make a compensatory award for lost earnings (see Chapter 10).




Damages for trade union detriment can include an award for injury to feelings (Cleveland Ambulance NHS Trust v Blane [1997] ICR 851). In London Borough of Hackney v Adams [2003] IRLR 402, the EAT 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). 


Injury to feelings awards can also be made in cases of detriment for asserting any of the rights under Part V, Employment Rights Act 1996. This includes working time rights. In South Yorkshire Fire & Rescue Service v Mansell [2018] UKEAT 0151/17/3001, firefighters supported by the Fire Brigades Union were able to claim compensation for injury to feelings when they were compulsorily transferred to a new station as a punishment for refusing to agree to a working pattern known as Close Proximity Crewing in breach of the Working Time Directive (see Chapter 4).


A claim for trade union detriment 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).