EAT TRADE UNION RIGHTS
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
Trade Union Rights – refusal of employment because of trade union membership – section 137(1)(a) Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’)
Approach to determining the reason for refusal and adequacy of the Employment Tribunal’s reasons
The Claimant was a pilot who had previously been employed by the Respondent, when he was also a member of the pilots’ trade union, BALPA. On 3 July 2009, the Claimant had spoken with the Respondent’s Executive Chairman, Mr Meeson, advocating that BALPA might have a role in representing the interests of pilots within the workplace. Mr Meeson had resisted that suggestion, following up on the conversation the next day with a heated expression of his views in that regard. BALPA had subsequently obtained a declaration of recognition from the Central Arbitration Committee in 2010 but problems continued in its relationship with the Respondent over the following years. In the meantime, in 2011, the Claimant had left the Respondent’s employment to take up another opportunity. In 2014, however, he wanted to return and duly applied to be employed as a pilot by the Respondent once again. The Claimant’s initial application was unsuccessful but he re-applied only to find out, in 2015, that he had been refused. On the Claimant’s subsequent application to the Employment Tribunal (‘the ET’), under section 137(1)(a) TULRCA (which renders it unlawful to refuse employment to a person because he is a trade union member), it was found that the decision had been that of Mr Meeson and his sole reason for refusing to agree to the Claimant’s employment was because of the Claimant’s activities for BALPA, which were related to his trade union membership; the ET thus finding that the Respondent had acted in breach of section 137(1)(a). The Respondent appealed, contending the ET had (1) erroneously adopted too broad an approach to trade union membership for these purposes, either as a matter of statutory construction or on the facts; alternatively (2) failed to conduct the required exercise for determining the reason for the refusal, or had failed to provide adequate reasons for its conclusion.
Held: dismissing the appeal
(1) ‘Membership’ for the purposes of section 137(1)(a) TULRCA was not to be construed narrowly as meaning mere membership (the carrying of the union card) – the provision was concerned with status and it would leave a gap in the statutory protection, contrary to the legislative intent, if an ET was unable to conclude that an objection to trade union activities that were incidental to membership was not an objection to membership itself (Harrison v Kent County Council [1995] ICR 434 EAT applied). Although a narrower view of membership had been expressed, obiter, by a majority of the House of Lords in Wilson v Associated Newspapers Ltd and Palmer v Associated British Ports [1995] ICR 406, that related to a different statutory provision (the predecessor to section 142 TULRCA), which allowed for a separate protection for trade union activities. In any event, it was now necessary to construe the statute compatibly with the European Convention on Human Rights and a narrow approach to section 137(1)(a) would fail to respect the Claimant’s article 11 right of freedom of association (and see Wilson and Palmer v UK [2002] IRLR 568 ECtHR).
Thus adopting a broad, purposive approach to section 137(1)(a), the ET had found that Mr Meeson’s refusal to employ the Claimant was because of his earlier activities as an advocate for BALPA’s representational role in the workplace and it had been open to the ET to find that such activities were incidental to the Claimant’s trade union membership and thus that the refusal was in breach of the statutory protection.
(2) As for the ET’s approach to determining the reason for the refusal to employ the Claimant, it had rejected various iterations of the Respondent’s positive case and had then gone on to consider whether the reason was contrary to section 137(1)(a). In carrying out its task in this respect, it had engaged in a reasoned adjudication of the relevant evidence and had adequately explained its conclusions. Moreover, having found that Mr Meeson was the sole decision taker, the ET was entitled to focus on that which it had concluded was in his mind when making the decision.
Citations:
[2017] UKEAT 0070 – 17 – 2510
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601905