Hostility to WEU Member Was Unlawful

Legal Framework

The dispute revolved around Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), which protects workers from suffering an unlawful detriment for participating in trade union activities. The key question was whether an employer’s failure to address hostility aimed at a member of an independent union amounted to a prohibited detriment under S.146.

Background

“B” was employed by the North Essex Partnership NHS Foundation Trust as a registered nurse from June 2006. In April 2009, he became actively involved with the Workers of England Union (WEU), serving as a representative on site, while remaining a member of UNISON. The Trust’s recognition agreement covered UNISON and other established unions—but excluded the WEU. Colleagues and UNISON representatives repeatedly taunted B, associating the WEU with fascism and bigotry. Despite B’s complaints, the Trust took no meaningful steps to stop the harassment.

Tribunal Findings

The Employment Tribunal unanimously held that the Trust’s failures to act:

• “Prevented or deterred” B from pursuing WEU activities.
• “Penalised” him for his union involvement.

It concluded these omissions amounted to an unlawful detriment under S.146(1)(b), aimed at weakening or marginalising the WEU in the workplace.

Employment Appeal Tribunal (EAT) Decision

On appeal, the EAT overturned the Tribunal’s ruling. It held that:

• Foreseeable effects of inaction are insufficient; the employer must have an improper purpose.
• The Trust acted to preserve neutrality between UNISON and the WEU, not to eliminate the latter’s influence.

Accordingly, the EAT found no deliberate intent to penalise B for his WEU activities and dismissed his complaints.

Court of Appeal Decision

The Court of Appeal allowed B’s appeal and restored the Tribunal’s award. It emphasized:

• The Trust’s inaction was driven by a desire for “a quiet life,” achieved by eliminating the WEU’s influence.
• Neutrality would have required treating both UNISON and the WEU equally—even if one vilified the other.
• The Tribunal’s findings of “weak and lamentably ineffective conduct” and “dereliction of duty” contradicted any claim of proper neutrality.

Therefore, the Court confirmed that the Trust’s conduct amounted to an unlawful detriment under S.146 TULR(C)A.

Key Takeaways for Employers and Unions

To prevent similar claims, employers must:

• Address all complaints of harassment or hostility toward any trade union member, regardless of recognition status.
• Avoid any appearance of bias or improper motive when dealing with competing unions.
• Document and promptly investigate incidents to demonstrate a neutral, good-faith approach.

Failure to do so risks findings of unlawful detriment and potential reinstatement of Tribunal awards, as confirmed in this landmark ruling.