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How should an employer deal with allegations of harassment relating to trade union membership?

on Friday, 12 February 2016.

The Court of Appeal have confirmed that an employer's failure to properly deal with incidents where members of one trade union antagonised a prominent member of another trade union amounted to unlawful detriment.

Legal Background

Under section 146 (1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), a worker must not be subjected to any detriment because of an act or omission by their employer, if the sole or main reason for the act or failure to act is to prevent or deter the worker from taking part in an independent trade union's activities.

Facts

In Bones v North Essex Partnership NHS Foundation Trust, Mr Bones (B) was employed by the Trust as a nurse. He was a member of both the Workers of England Union (WEU) and Unison.

Whilst Unison was a party to the Trust's recognition agreement, WEU was not and its presence in the workforce was not welcomed by other recognised trade unions and the Trust. B was regarded as leading member of the WEU.

During 2010, B was subjected to acts that sought to ostracise and intimidate him in his position as a member of the WEU by colleagues who were members of other recognised trade unions. B complained to the Trust about the various incidents but little or no action was taken by the Trust.

B brought a number of claims against the Trust, including that the Trust had subjected him to a detriment because of his trade union activities contrary to S.146(1) TULR(C)A.

The tribunal upheld B's claim under S.146(1), finding that the Trust's 'failure to to deal with the matter in accordance with their disciplinary procedures and dignity at work policies was a clear dereliction of duty'.

The tribunal stated that the Trust did not actively take part in the campaign of intimidation against B. However, their failure to take appropriate action to deal with it would foreseeably have the effect of deterring B from taking part in the activities of his trade union and/or penalising him for doing so.

Decision

Initially, the Employment Appeal Tribunal overturned the original finding, on the basis that the tribunal did not have jurisdiction to hear the claim, as the WEU did not, at the relevant time, have the necessary certification as an independent trade union. The decision then came before the CoA.

The CoA's findings therefore largely focus on the meaning of 'independent trade union' and whether the employment tribunal had jurisdiction.

The CoA restored the tribunal's decision of unlawful detriment under S.146 TULR(C)A. The CoA agreed that the main purpose in not taking action was to suppress B's union activities and the WEU's influence in the workplace. They accepted that the Trust was motivated by the desire to maintain good relations with the recognised trade unions but this did not excuse their inaction.

Best Practice

This case demonstrates the importance of employers taking an active role in preventing and dealing with all forms of inappropriate behaviour and harassment in the work place, particularly when such conduct is linked to trade union activities. Employers should not simply shy away from disputes between union members, but should take positive steps to protect all of their employees, in accordance with their procedures as appropriate.

It is also now clear that, where a trade union does not have a certificate of independence at the relevant time, but later obtains one, the certificate will have retrospective effect. On this basis, employers should not assume that they are not at risk of falling foul of TULR(C)A simply because a union does not have a certificate of independence at a given point in time.


For more information, please contact Gemma Cawthray in our Employment Law team on 0117 314 5266.

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