VICTIMISATION AND TRADE
UNIONISTS :
THE LEGAL ARGUMENTS
Neil Johnson
Thompsons Solicitors
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Refusal of Work
Sections 137 and 138 TULRCA prohibit
employers and employment agencies from
refusing work/services to someone because
he/she:• is a member of a trade union or
• is unwilling to accept a requirement to cease to
be a member of a union or
• is unwilling to accept a requirement not to join a
union.
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Harrison v Kent County Council [1995] ICR
434
Tribunal Complaint
• 3 months
Remedy
• A declaration
3
• Compensation
• Recommendation
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BLACKLISTING
Employment Relations Act 1999 (Blacklists)
Regulations 2010
Prohibited lists
• Reg 3(1) provides that no person shall ‘compile,
use, sell or supply a prohibited list’
• Defined in Reg 3(2) as a list which ‘contains details of
persons who are or have been members of trade unions
or persons who are taking part or have taken part in the
activities of trade unions’ and is compiled ‘with a view to
being used by employers or employment agencies for
the purposes of discrimination in relation to recruitment
or in relation to the treatment of workers’.
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Access to Employment
Reg 5 affords an individual with the right to
complain to an employment tribunal if he or she
has been refused employment for a reason that
relates to a prohibited list, and in relation to that
list the employer has either contravened Reg 3
or relied on information supplied in
contravention of Reg 3.
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Employment agencies
Detriment
• Reg 9, a person may complain to an
employment tribunal if his employer, by an act or
deliberate failure to act, subjects him to a
detriment
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Unfair dismissal
S.104F(1)ERA, an employee shall be regarded as unfairly
dismissed if the reason, or principal reason, for the
dismissal relates to a prohibited list, and the employer
either contravenes, or relies on information supplied in
contravention of, Reg 3 in relation to that list. A
redundancy dismissal will also be unfair if the reason, or
principal reason, for which the employee was selected for
redundancy relates to a prohibited list and the employer
contravenes, or relies on information supplied in
contravention of, Reg 3 in relation to that list.
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Enforcement
• Employment Tribunals
• High Court and County Court
Compensation
• Reg 8, an employment tribunal can award compensation
and/or make a recommendation that the respondent take
action for the purpose of obviating or reducing the
adverse effect on the complainant of the conduct to
which the complaint relates.
• Minimum award £5,000, maximum £65,300
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PROTECTION FROM DETRIMENT
•
Section 146 TULRCA
A worker has the right not to be subjected by
his/her employer to any detriment as an individual
on Union grounds. Sub Section (1) prohibits
detriment with the sole or main purpose of
(a) preventing or deterring the worker from being or
seeking to become a member of an independent trade
union, or penalising him/her for doing so,
(b) preventing or deterring the worker from taking part in
the activities of an independent trade union at an
appropriate time or penalising him/her for doing so,
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(ba) preventing or deterring the worker from
making use of trade union services at an
appropriate time, or penalising him/her for
doing so, or
(c) compelling the worker to be or become a
member of any trade union or of a particular
trade union or of one of a number of
particular trade unions.
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Section 146(1)/(2C) and Wilson and Palmer
Tribunal complaint
• 3 months
Remedy
• Just and equitable amount in the circumstances
having regard to the infringement complained of and
any loss sustained
• Injury to feelings – Cleveland Amubulance NHS Trust
v Blane [1997] IRLR 332.
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Support for Recognition (Para 156, Schedule
A1, TULRCA)
• Para 156 protects workers from detriment for supporting
recognition under the Schedule
Protected grounds include:• acting with a view to obtain union recognition
• indicating support for recognition
• acting with a view to preventing derecognition or indicating
opposition to derecognition
• seeking to influence how other workers vote in a recognition
ballot
• voting in a recognition ballot
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Other Protected Grounds
•
•
•
•
Health & Safety Reps
Working time cases
Trustees of occupational pension schemes
Employee reps
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PROTECTION FROM DISMISSAL
• Section 152, TULRCA
It is automatically unfair to dismiss an employee
for participating in trade union membership or
activities or making use of union services;
• the right to complain of unfair dismissal on grounds is
restricted to an employee
• the qualifying period of 1 year does not apply
• the claimant may make an application for interim relief
• remedy can include reinstatement or re-engagement
• minimum basic award
• Additional award
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Section 152 renders a dismissal
automatically unfair if the principal reason was that
the employee:(a) was or proposed to become a member of an
independent trade union
(b) had taken part or proposed to take part in the
activities of an independent trade union at an
appropriate time
(ba) had made use or proposed to make use of
trade union services at an appropriate time
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Remedy
Basic award – minimum £4,700
Compensatory award
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Other Grounds of Protection from Dismissal
•
•
•
•
•
Support for Recognition
Health & Safety
Working Time representatives
Trustee of Pension Scheme
Employee Representative for consultation over
TUPE or collective redundancies
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INTERIM RELIEF
Sections 161-163 TULRCA; s128-132 ERA96
3 conditions
• 7 days
• written certificate
• likely to succeed
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SELECTION FOR REDUNDANCY
Section 153, TULRCA provides a redundancy
dismissal is automatically unfair if the reaason or
Principle reason for selecting an employee for
redundancy was union grounds, i.e. the tribunal is
satisfied that:
• the circumstances constituting the redundancy applied
equally to one or more other employees in the same
undertaking who held positions similar to that held by
him and who have not been dismissed by the employer,
and
• the reason (or, if more than one, the principal reason)
why he was selected for dismissal was one of those
specified in section 152(1).
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Remedy
Basic award – minimum £4,700
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PROTECTION FROM INDUCEMENTS
Associated Newspapers Ltd v Wilson; Associated
British Ports v Palmer
Section 145A forbids offers with the sole/main
purpose of inducing a worker not to join an
independent union;
• not to take part in its activities at an appropriate
time
• not to make use of its services
• to join one or more of a number of unions
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Section 145B forbids an offer to a worker who is
already a member of an independent union that is
or is seeking to be recognised by the employer if
• acceptance of the offer by the worker and other
workers would result in any/all of their terms and
conditions not or no longer being set by
collective bargaining by that union and
• the employer’s sole/main purpose is to achieve
that result.
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Remedy
Section 145E Declaration + flat rate
compensation of £2,900
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