Trade union victimisation

Individual union members have legal protection against victimisation by their employer.

Under section 146 of TULRCA, employees and workers have the right to protection from victimisation 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; and

• being a trade union member.

This protection was originally available only to employees – not workers. The law was changed by the Employment Relations Act 2004 to extend protection to workers after the European Court of Human Rights ruled, in the case of Wilson and Palmer v The UK [2002] IRLR 568, that the UK was in breach of the Convention by failing to protect workers engaged in lawful trade union activities.

Under section 152, TULCRA, trade union members who are employees (as opposed to workers) 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).

In Smith v Carrillion (JM) Limited [2015] EWCA Civ 209 , the Court of Appeal confirmed that protection from victimisation under section 146, TULRCA extends to ex-employees, following the case of Woodward v Abbey National PLC [2006] EWCA Civ 822.

“Activities” under sections 146 and 152 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).

The manner in which trade union activities are carried out should be 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).

An “appropriate time” is outside working hours or within working hours with the employer’s agreement (section 146(2), TULRCA).

An employee carrying out 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).

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

Dismissal because an employee has been an active union member in a previous job is unfair and a breach of section 152 of TULRCA (Fitzpatrick v British Railways Board [1991] IRLR 376). The key issue is why the employer dismissed the employee.

Another example is Lindsay v General Contracting EAT/1126/00. Ms Lindsay was dismissed shortly after joining a union. Her employer denied the dismissal was related to union membership, claiming it was because of timekeeping. But 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 the dismissal was for trade union reasons.

However, according to the Court of Appeal in Gallacher v Department of Transport [1994] IRLR 231, an employer’s refusal to promote someone because time spent engaged in trade union duties had prevented them from acquiring relevant experience was not victimisation.

In MANCAT v Smith UKEAT/0460/06, a tribunal concluded that a college principal’s hostility to the claimants was motivated by animosity towards them because of their trade union activities.

A decision to decline to recognise a shop steward who has been accredited by the union 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).

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

Making it a condition of reinstatement that a trade unionist give up their lawful trade union activities is victimisation (Baksh v Northumberland and Tyne & Wear NHS Foundation Trust [2012] EWHC 1445).

Organising to promote recognition is specifically protected. It is unlawful to subject a worker or an employee to a detriment or dismissal for promoting recognition or derecognition of a trade union as long as the worker’s actions are “not unreasonable” (Schedule A1 Part VIII paragraphs 156 to 161 of TULRCA).

Under section 44 of the Employment Rights Act 1996, employees (but not workers) who are appointed as safety reps have additional protection from victimisation by their employer for carrying out their 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.

Industrial action is excluded from the definition of trade union activities. Separately, under section 238 of TULCRA, the law provides some limited protection from dismissal for employees engaged in lawful industrial action (see Chapter 9, page 265). However, there is no express statutory protection against action short of dismissal for taking lawful industrial action. The UK is likely to be in breach of the European Convention on Human Rights for failing to provide a remedy in these circumstances.

Victimisation claims must be issued in the tribunal within three months of the date when the action complained of occurred. If the claim is upheld, the tribunal will order the employer to pay compensation that is “just and equitable”.

Since 6 May 2014, the first step in any tribunal claim is to initiate Acas Early Conciliation. This first step is compulsory and must be taken within the time limit for bringing the claim. Acas Early Conciliation does not apply to applications for interim relief (see page 127). For information on Acas Early Conciliation see Chapter 3.

There is no length of service requirement for a claim for trade union victimisation. If the victimisation results in a dismissal, a minimum of £5,807 (2015-16) basic compensation will be awarded. In addition the tribunal can make a compensatory award capped at the lower of 52 weeks’ gross wages or £78,335 (2015-16), 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.

A claim for detriment on account of trade union activity under section 146, TULRCA must be heard by a full tribunal panel, not by a judge sitting alone.

A claim for unfair dismissal under section 152, TULRCA, can be heard by a judge sitting alone even though it relates to trade union activity. However, the judge has a discretion to hear the case in a panel with lay members, one from the employer and one from the worker side (see Chapter 1).

Where an unfair dismissal claim is combined with a claim for trade union detriment, the judge should normally combine both claims, and hear the whole case with a full panel, including lay members (Birring v Michael Rogers and Carolyn Moore t/a Charity Link [2015] UKEAT/0388/14/RN).