When should an employer get involved in a spat between two trade union members?

The recent case of Bone v North Essex Partnership NHS Foundation Trust highlights the importance of intervening where an employee is suffering difficulties at work as a result of being a member of a trade union. It also provides vital clarity on the importance of the independence of a trade union to a claim for detriment, and how and who should preside over the question of the retrospective independence of a Union.

Mr Bone, who worked for the NHS Trust (the “Trust) as a Mental Health Nurse, was a member of Unison. He was also a member of the smaller Workers of England Union (WEU), in which he became an active member and regarded himself as a trade union representative. Unison was recognised by the Trust along with other trade unions. The employer had a “Working in Trust” partnership agreement with Unison. The WEU was not a member of this agreement nor was it recognised by the Trust for collective bargaining purposes.

Employees of the Trust who were also a member of Unison took a disliking to Mr Bone because of his active participation in WEU. A campaign of bullying and harassment was instigated against Mr Bone by these workers. This included suggesting the WEU was linked to fascism, commenting to another colleague that Mr Bone was a bigot (which was reported to him later) and a colleague greeting Mr Bone with the words "hello Adolf". The Trust did not deal with these incidents effectively or deal with the perpetrators in line with its Disciplinary or Dignity in the Workplace policies.

Workers and employees are afforded protection from detriment under s.146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) because of their involvement or membership in a trade union. A worker has the right not to be subject to any detriment as an individual by any act or any deliberate failure to act by his employer, if the act or failure takes place for the sole or main purpose of:

1a) preventing or deterring them from being or seeking to become a member of an independent trade union, or penalising them for doing so;

1b) preventing or deterring them from taking part in the activities of an independent trade union at an appropriate time, or penalising them for doing so;

1c) preventing or deterring them from making  use of trade union services at an appropriate time, or penalising them for doing so; or

1d) compelling them to be or become a member of any trade union, or of a particular trade union.

Mr Bone brought an Employment Tribunal claim. The Tribunal rejected the Claimant’s claim for racial discrimination (not relevant to this update) but upheld his claim under s.146(1)(b) of TULRCA against the Trust. It found that four incidents in particular (including those outlined above) had the effect of preventing or deterring Mr Bone from taking part in the activities of an independent trade union and penalised him for doing so. This amounted to a detriment, which it was reasonably foreseeable would deter Mr Bone from taking part in trade union activity.

The Trust appealed this decision, arguing that their failure to investigate was borne from a desire to maintain neutrality between the two trade unions, not to deter Mr Bone in any way. However, the EAT of its own volition noted that it was not clear if the WEU was an independent trade union, which is a requirement of s.146(1)(b). The Panel therefore adjourned the appeal so that the WEU could apply to the Certification Officer for a Certificate of Independence. On 27th June 2013, a certificate was issued confirming the WEU’s independence. However, the EAT decided that the certificate did not have retrospective effect and the ET had not therefore had jurisdiction to hear Mr Bone’s claim. They did not review any of the Trust’s points of appeal. Unsurprisingly, Mr Bone appealed this finding to the Court of Appeal (“COA”).

s.5 of TULRCA defines a ‘trade union’ as independent where it is both:

(i) not under the control of an employer or their associations; and

(ii) not liable to interference by an employer or association which would tend towards such control, for example, where  financial support is received by the Union from an employer.

A trade union may also apply for a Certificate of Independence under s.6 of TULRCA, which provides conclusive evidence that the trade union is independent.

Whilst there is merit in asserting in a Grounds of Resistance to a claim like Mr Bone’s that a trade union isn’t independent under s.5 of TULRCA when a Claimant is relying on s.146(1)(a) or (b) of TULRCA, the COA made clear that the lack of a certificate is not conclusive evidence that a trade union is not independent. The trade union may still satisfy the criteria of s.5 TULRCA without a certificate in terms of its independence. The COA clarified that the law only requires reference to the Certification Officer if there is a dispute over whether the trade union satisfies the requirements of s.5 TULRCA.

They COA found that:

• The WEU was clearly not dependent upon or under the control of the employer;

• The jurisdiction of the Tribunal does not depend on the independence of the trade union, otherwise a Certificate of Independence would be a precondition for the issue of proceedings under s.146(1)(a) or (b);

• It was too late for the Trust to raise the issue of independence as they had not raised this in their Grounds of Resistance or as a preliminary matter; and

• If a Tribunal is concerned about the independence of a trade union some time in the past (as in this case 3 years prior) because the Tribunal is barred from hearing the relevant evidences, under s.8(4) TULRCA they must still refer the question to the Certification Officer but on a historic basis.

What does this mean for you or your business?

The main point to take away from this case is to prioritise your responsibilities to your employees ahead of any desire to keep the peace, or for an easy life when it comes to trade union activity and membership by your employees. If conflict occurs between your employees due in any way to their involvement with a trade union (whether you recognise the trade union or not), use your policies to ensure that all employees are protected from detriment under s.146 and do not bury your head in the sand thinking it is someone else’s problem.

If you receive a claim for detriment, consider whether the trade union to which the employee is a member is independent in line with the requirements of s.5, and consider raising this as a preliminary point.

What do you need to be doing now?

Check your policies and staff training on the issue of trade union membership. If situations like this arise in your business, ensure that all allegations of bulling and harassment are investigated appropriately in line with your policies.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.