Protection of union members from victimisation 



There are a number of 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). 



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



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 145B, TULRCA, it is unlawful for an employer to subject any worker to a detriment (including dismissal), or to fail to confer a benefit because the worker has refused an inducement to join (or not join) a trade union or to stop having their contract terms negotiated through collective bargaining (see the examples at the start of this Chapter).



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, in the case of Wilson and Palmer v The UK [2002] IRLR 568, 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.



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, TULCRA, trade 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), but the activities must be activities of the union, not just those 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.



Separately, section 238 of TULCRA provides some limited protection from dismissal for employees engaged in lawful industrial action (see Chapter 10: Dismissal and industrial action). However, in the UK, there is no express statutory protection from “action short of dismissal” (in other words, retaliation by the employer, such as withdrawal of travel privileges) to punish workers who take lawful industrial action. The UK is likely to be in breach of the European Convention on Human Rights for failing to protect striking workers from action short of dismissal.



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). 



“Membership” has been interpreted broadly (Discount Tobacco and Confectionery Limited v Armitage [1995] ICR 431) to include approaching a trade union officer to ask 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 within 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). 



An employee carrying out trade union activities at an appropriate time who is disciplined because of those activities is unlawfully victimised (London Borough of Islington v Hutchings EAT/34/01). 



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 a member’s union is recognised, and regardless of whether another union is already recognised in the workplace. However the union must be 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 was 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 union duties, this was not the employer’s main purpose, so his section 146 claim failed.



In Manchester College of Arts and Technology v Smith UKEAT/0460/06, the EAT refused to overturn a majority tribunal ruling that five lecturers (all active trade unionists), made redundant when their trade union education unit was summarily closed for “economic reasons”, were unlawfully sacked for trade union reasons because senior management resented their union activities.



Deleting a post from a restructuring chart that a trade union rep stood a good chance of getting, after she led objections to the way in which a restructuring was being carried out, leading to her dismissal for redundancy, was a detriment (University of Bolton v Corrigan [2015] UKEAT 0408/14/RN).


The Court of Appeal has held that withholding a pay rise from an employee until she 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 it a condition of reinstatement that a trade unionist gave up lawful trade union activities was trade union victimisation (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 or employee 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 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 who are penalised for acting as safety reps may be instead able to bring victimisation claims under the Public Interest Disclosure Act 1998 (whistleblowing). In McTigue v University Hospital Bristol NHS Foundation Trust [2016] IRLR 742, the EAT ruled that where an agency worker’s terms of engagement have been “substantially determined” by both the employer agency and the end user, both can be the individual’s “employer” for the purposes of a whistleblowing claim. See Chapter 4, page 138.


Claims must be brought within three months of the date of the action complained of. If a claim is upheld, the tribunal will 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 EC Notification Form. This first step is compulsory and must be taken within the time limit for bringing the claim. For information on Acas EC see Chapter 13.



There is no length of service requirement for a claim for trade union victimisation. If the victimisation results in dismissal, a minimum of £5,970 (from April 2017) basic compensation will be awarded. In addition, the tribunal can make a compensatory award, capped at the lower of 52 weeks’ gross wages or £80,541 (from April 2017).


Damages can be awarded for injury to feelings. 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 in any other field of discrimination law.



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 (see Chapter 13). By contrast, 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. Where a claim is for both unfair dismissal and trade union detriment, the judge should exercise their discretion to hear the whole case with a full panel (Birring v Michael Rogers and Carolyn Moore t/a Charity Link [2015] UKEAT/0388/14/RN).