Union membership or activity and redundancy selection

It is automatically unfair to select individuals for redundancy because they are (or are not) trade union members. Section 153 of TULRCA says that if the reason (or the main reason) for selecting an employee is actual or proposed trade union membership or activities, accessing trade union services, or refusing an inducement relating to trade union membership or collective bargaining, that selection will be unfair. For example:

The selection of two employees because they had been leading strike activists was also an automatically unfair dismissal (Britool v Roberts [1993] IRLR 481). So was selecting someone for redundancy because he spent too much time on union activities, even though the employer was not motivated to get rid of the employee because of those activities (Dundon v GPT [1995] IRLR 403). Equally, an employer is not allowed to assess an employee based on skills demonstrated while carrying out their work as a safety rep (Smiths Industries v Rawlings [1996] IRLR 656). An employee’s duties as a trade union or safety rep should neither prejudice nor advantage a redundancy selection (Shipham v Skinner EAT/840/00).

It is automatically unfair (section 104F of the ERA 96) to select an employee for redundancy where the reason for the selection relates to a blacklist (a list containing details of individuals who are or have been trade union members, or have taken part in trade union activities).

Union reps should exercise care if moved to alternative work to allow them to accommodate trade union duties. In O’Dea v ISC Chemicals [1995] IRLR 599, the EAT ruled that it was fair to select a union rep for redundancy when the company no longer needed the alternative work he had been moved to, even though there was still a need for work in his original post.

When a TUPE transfer takes place, full-time reps will not necessarily transfer with the part of the business where they were employed before they became reps. Each case will depend on its own facts but, for example, in Birmingham City Council v Gaston UKEAT/0508/03, a tribunal decided that a full-time shop steward did not transfer when the housing repairs division he originally worked in was outsourced to a private sector company. Since his duties as a full-time shop steward meant that he worked across the whole organisation, he was no longer “assigned to” the part of the business that was transferring.