The Trade Union and Labour Relations (Consolidation) Act 1992 prevents employers subjecting workers to a detriment if the purpose of the action is to compel the worker to become a member of a trade union, or to prevent or deter the worker from:
Once an employee has alleged that any of these rights have been breached, it is up to an employer to show why it acted (or failed to act) in the way it did.
The case involved a mental health nurse who was prominent in the Workers of England Union (WEU), a small, independent nationalist trade union. He was also a member of Unison. His employer recognised a number of trade unions, including Unison and the Royal College of Nursing, but not the WEU.
Bone brought a claim against his employer, saying that he had been subjected to discrimination based on the fact that he was English or because the WEU had the word ‘England’ in its name. This claim was dismissed. He also claimed he had been subjected to a detriment on grounds related to trade union activities and alleged that a Unison local representative had circulated an email suggesting the WEU was linked to fascism; a branch official had sent an email expressing concerns about the “creeping crypto fascism” of the WEU; he had been addressed as ‘Adolf’; and a colleague had privately described him as a ‘bigot’ to a manager.
Tribunal and EAT
An employment tribunal found in Bone’s favour, deciding the employer should have disciplined the employees involved and that it had effectively allowed Unison officials to intimidate Bone in an attempt to drive the WEU out from the Trust. This was subjecting him to a detriment. The employer appealed and was successful in the Employment Appeal Tribunal, but Bone appealed again.
Court of Appeal
The Court of Appeal has recently decided that the employment tribunal had the right to decide what the facts of the case were and that the way the employer had dealt with the four incidents had subjected the claimant to a detriment. The tribunal had found the employer’s purpose in not taking the action it should was to eliminate or marginalise the influence of Bone and the WEU in the workplace; that it was aware this might be the consequence of its inaction; and the way it handled the conflict was motivated by the wish to placate Unison and achieve a 'quiet life'.
In an effort to maintain a harmonious relationship with a recognised trade union, it is easy to see how an employer would take the path of least resistance and turn a blind eye to harassment and bullying of a non-recognised union member. However, this case illustrates that no matter how unpalatable the union member's views may be, it is important to ensure that disciplinary and dignity at work policies are applied to all staff members equally, bearing in mind that inaction in these situations can be as bad as inappropriate action.
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