Good morning, we have another case law update fresh off the digital press for you to read. Today’s case concerns trade unions and is something of a judicial foul up but in the end raises some interesting points. You can also read last week’s case on voluntary redundancy.
Can an employer’s omission amount to detriments in relation to trade union activity?
Do an employee’s controversial/potentially offensive views mitigate this omission?
Mr Bone, the Claimant, was a mental health nurse for North Essex NHS trust, the Respondent. Mr Bone was a member of two trade unions, Unison, and the much smaller Workers of England Union (WEU). The Respondent had a ‘working in trust’ agreement with Unison and several other recognised trade unions. The Respondent and the larger unions did not welcome the arrival of WEU and they were not part of the agreement.
The Claimant became a leading member of the WEU and this caused several incidents of discrimination/bullying. These incidents included:
1. Following the Claimant standing as an MP for the English Democrats, a colleague circulated an email suggesting that the WEU was fascist and had ties to organisations such as the BNP.
2. Another colleague referred to the Claimant as a bigot in front of a manager and was not reprimanded.
3. Upon arriving for work the Claimant was greeted with ‘Hello Adolf’ by the colleague who insinuated the WEU was fascist.
4. A Unison official sent an internal email to employees of the Respondent warning them of creeping fascism from the WEU.
The Claimant, did not resign or leave his employment but did bring several claims for racial discrimination and detriment on grounds in relation to trade union activities. The basis of these claims was the Claimant’s English race and the WEU having the word England in its name.
Following some legal dispute about whether the ET had jurisdiction the matter eventually went to the Court of Appeal. The Court of Appeal found that as the WEU was an independent union the Respondent did not do enough to prevent the Claimant from suffering detriment. It believed the Respondent acted in this way to placate Unison and its members who were a much larger and influential union. The fact that the Trade Union was not certified was immaterial.
The takeaway points:
Yes, an employer’s omissions can amount to a detriment in relation to trade union activities. If an employer does nothing to prevent the detriment they could be liable. It also shows how unions of all sizes must be respected if the Employer does acknowledge them as an independent Trade Union, this doesn’t require certification.
No, despite seemingly holding divisive views, the Claimant should not have been subjected to detriment. The Respondent could have sent the Claimant on training or taken some other measure to prevent these views form causing a rift with colleagues. We covered a similar case in Henderson v GMB or click here for another employment Court of Appeal case.