1 VICTIMISATION AND TRADE UNIONISTS : THE LEGAL ARGUMENTS Neil Johnson Thompsons Solicitors

2 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.

3 Harrison v Kent County Council [1995] ICR 434 Tribunal Complaint 3 months Remedy A declaration

4 Compensation Recommendation

5 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’.

6 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.

7 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

8 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.

9 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

10 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,

11 (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.

12 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.

13 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

14 Other Protected Grounds Health & Safety Reps Working time cases Trustees of occupational pension schemes Employee reps

15 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

16 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

17 Remedy Basic award – minimum £4,700 Compensatory award

18 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

19 INTERIM RELIEF Sections TULRCA; s ERA96 3 conditions 7 days written certificate likely to succeed

20 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).

21 Remedy Basic award – minimum £4,700

22 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

23 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.

24 Remedy Section 145E Declaration + flat rate compensation of £2,900