In Bone v North Essex Partnership NHS Foundation Trust, the Court of Appeal has restored a tribunal’s decision that an employer’s failure to deal with incidents in which employees and members of an established trade union antagonised a member of a new union was motivated by the employer’s desire to weaken or marginalise the new union, and that the union member thereby suffered an unlawful detriment under S.146 of the Trade Union and Labour Relations (Consolidation) Act 1992. In so holding, the Court overturned the EAT’s decision that the tribunal’s findings indicated that the employer was merely trying to preserve its neutrality.
B was employed by the Trust as a registered nurse from June 2006. In April 2009 he became involved with the Workers of England Union (WEU) and regarded himself as a representative for the members of that union at the hospital. He was also a member of UNISON. The Trust had a recognition agreement with a number of trade unions, including UNISON. The WEU was not a party to that agreement and neither the Trust nor UNISON welcomed its arrival. During 2010, B was subjected to a number of incidents in which his colleagues and UNISON representatives sought to link him and the WEU with fascism or bigotry. B considered that the Trust had failed to deal adequately with his complaints about these matters and he brought a tribunal claim, asserting that he had been subjected to a detriment for a reason related to his trade union activities contrary to S.146 TULR(C)A.
The tribunal upheld the claim, finding that the Trust’s actions (or failures to act) in response to four incidents had prevented or deterred B from taking part in the activities of an independent trade union, and penalised him for doing so, contrary to S.146(1)(b). However, on appeal, the EAT overturned the tribunal’s decision (Brief 1004). The EAT held that the employment tribunal incorrectly looked at the foreseeable effect of the Trust’s actions (or failures to act) and found that this indicated an intention by the Trust to prevent or deter B from his union activities. In the EAT’s view, it was not sufficient to say that an effect was foreseeable in order to establish liability. The act had to have been done or deliberately not done with an improper purpose. The EAT also held that the tribunal had gone too far in its finding that the Trust’s intention was to eliminate the WEU’s influence. The tribunal had made specific findings that the Trust was trying to preserve its neutrality as between the unions and avoid offending UNISON and there was no suggestion that this was an improper motive. As a result, the EAT upheld the Trust’s appeal and dismissed B’s complaints. B appealed to the Court of Appeal.
The Court of Appeal allowed the appeal and restored the decision of the tribunal. The tribunal had made clear findings that the Trust’s failures to act proceeded from its contemplation of a quiet life on the trade union front, which would be achieved by the elimination of the WEU’s influence from the workplace, and that the reasons for not taking further action had everything to do with putting B off from his trade union activities. Thus, the Trust’s purpose was to seek to weaken or marginalise the WEU. The tribunal’s findings did not suggest that the Trust’s stance was a neutral one. On the contrary, neutrality would have would have involved treating UNISON in the same way as the WEU would have been treated had it vilified another trade union in the workplace. The tribunal had also referred to the ‘weak and lamentably ineffective conduct’ of the Trust’s management in not protecting B and to its ‘dereliction of duty’, all of which was a long way from a finding of neutrality. The EAT had therefore been wrong to interfere with the tribunal’s decision. The EAT’s decision would be set aside and the tribunal’s finding of unlawful detriment under S.146 TULR(C)A would be restored.
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