Critically consider whether trade union membership is effectively protected in English law.
Example Employment Law Essay
At first blush trade union membership appears to be well protected in English law. Sections 137 to 153 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992) prohibit employers from not offering employment, terminating employment or subjecting an employee to a detriment on the basis of trade union membership or activities. The Employment Relations Act 1999 (Blacklist) Regulations 2010 make it unlawful to dismiss or refuse to hire certain tradesmen on account of them having been blacklisted for union activities. Finally recent decisions in the Court of Appeal on procedural errors in relation to strike action seem to indicate that it will be harder for an employer to have a strike declared unlawful. This is important because if a union's activities are curtailed it will be less effective and therefore less attractive to prospective members. Therefore these decisions appear to protect union membership in a general sense rather than an individual one. However, when we examine each of these areas in more detail, the protections seem far less rigorous.
S146(1) TULRCA 1992 states that a worker has the right not to be subjected to any detriment by his employer if the detriment occurs "for the sole or main purpose" of interfering with a range of union activities. The key difficulty for prospective claimants here is the phrase "sole or main purpose". A good example is Watson v London Metropolitan University.1 In this case Mr Watson had received a final warning in relation to a recruitment exercise. Watson was a prominent UNISON member and the Tribunal had agreed that there was "unusually strong evidence of anti-union animus on the part of the University."2 Moreover, the disciplinary sanction had been imposed by a Professor McCaffery, who had previously called for Watson to be suspended for his union activities. For example, commenting on a Unison communication written by Watson, McCaffery had written in an email to the deputy chief executive: "This is wholly unacceptable behaviour as a staff member even if he is acting in a TU capacity (as well as a fundamental breach of the University's values . . .). I assume the next step would be to suspend him with immediate effect." Nonetheless, Watson still failed to establish that the final warning was imposed for the sole on main purpose of his union work. The same issue arose in North Essex Partnership NHS Foundation Trust v Bone.3 The claimant had again applied under s461 TULRCA 1992 stating that his employer had not taken action against the abuse he was suffering from other employees due to his activity for a smaller union that was resented by members of Unison. This included claims that Mr Bone was linked "with fascism and the British National Party",4 being called a "bigot"5 and being greeted with "Hello Adolf."6 The Tribunal took the view that this abuse was "the consequence of the NHS Trust management's 'weak and lamentably ineffective conduct' in failing to protect Mr Bone."7 However, the Employment Appeal Tribunal disagreed and drew a very fine distinction between an employer's reason and purpose. Commenting on the case Smith explains that "according to the judgment, although it may have been foreseeable that the employer's actions might have the effect of compromising the individual's union activities, that could not constitute the improper purpose required by the section."8 In other words, although Mr Bone suffered abuse because of his union activities and although his employer should have acted and did not, the requirements of s146 TULRCA 1992 were still not made out because he could not demonstrate that his employer specifically intended to deter his union activities.
At first glance it is surprising that s146 TULRCA is such a hard ground to succeed on given s148 of the same Act provides: "on a complaint under section 146 it shall be for the employer to show what was the sole or main purpose for which he acted or failed to act." As Smith comments, this seems to be like the reverse burden of proof for discrimination cases now found at s136 Equality Act 2010.9 S136 is a powerful tool against discrimination for once the claimant has proved "facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of unlawful discrimination...it is then for the employer to prove otherwise."10 However this is not the case. Smith cites the recent judgement in Serco Ltd v Dahou11where the judge concluded that if a tribunal rejects an employer's reasons "it may conclude that this gives credence to the reason advanced by the employee, and it may find that the reason was the one asserted by the employee. However, it is not obliged to do so...it remains open to it to conclude that the real reason was not one advanced by either side."12
One area in which TULRCA 1992 is quite effective is the "interim relief" protection afforded by s161. This section allows an employee who has apparently been dismissed as a result of union activities to apply to a tribunal for an order to continue the employment until the substantive issue of the dismissal can be decided. A good example is Mihaj v Sodexho Ltd13 in which the Employment Appeal Tribunal (EAT) allowed an appeal by an RMT official who had initially been refused interim relief. Here the employer had argued that the manner in which Mihaj had carried out his union activities put them outside of the scope of s161. However the EAT stated: "the way in which trade union activities are carried out is immaterial to the decision as to whether they are in fact trade union activities unless the way in which they are carried out is such as to be dishonest, in bad faith, or carried out for some other organisation or cause so as to remove them from the scope of what can properly be called trade union activities."14 This judgement indicates that union officials should be allowed leeway in the way they carry out their duties and should not loosen the protection of interim relief lightly.
Other legislation which was intended to protect trade union membership is the Employment Relations Act 1999 (Blacklist) Regulations 2010. Blacklisting is a serious problem. Ponting states: "The extent of construction sector blacklisting emerged in February 2009 after a raid by the Information Commissioner's Office (ICO) on the Consulting Association (CA). The ICO discovered dossiers, card indices and a list covering 3,213 construction workers, which 44 construction firms - many of them household names - had used to vet individuals for employment...The ICO found that the CA had been running the lists for more than 15 years, with construction companies additionally supplying data to the CA."15 The Regulations came into force on 2nd March 2010 and s3 makes it illegal to distribute, compile or supply a list for the purposes of discriminating against union members in offers of employment. However it is far from clear that these regulations will be effective. Hubert gives the response of one construction union which claimed that "the regulations are too weak to properly control the problem as they do not make blacklisting a specific criminal offence and only prevent workers from being blacklisted for undertaking narrowly defined 'trade union activities'...Cynical construction employers will recognise the weakness of the regulations and could continue to blacklist workers."16 The lack of a specific criminal offence of blacklisting appears to be a real problem as Ponting, commenting in June this year states "No criminal proceedings have been taken against any of the firms implicated in blacklisting."17
An indirect way in which union membership has been threatened has been the relative ease employers have enjoyed in having strikes declared illegal due to a procedural error on the part of the union. Weir comments, "Until recently, employers appeared to hold the upper hand in the court battles to prevent trade unions organising industrial action. Stringent procedural requirements within industrial relations legislation have often left trade unions vulnerable, with courts granting injunctions to prevent strikes when faced with what may be perceived to be "minor" technical breaches."18 The rules governing balloting for strike action are found in TULRCA 1992 in ss227 and 230(2) which concern entitlement to vote and ss226A and 234A which cover notification. These rules are quite detailed mistakes can easily occur. Although S232B provides that "in relation to a ballot, small accidental failures are to be disregarded as long as these failures are unlikely to affect the result of the ballot"19 this has been of little assistance to unions as "The courts have traditionally interpreted this provision quite restrictively, expecting a high standard of precision...This has resulted in employers successfully obtaining injunctions in circumstances where breaches of these provisions are relatively minor."20 Weir gives the examples of two cases which point to a change in direction. Firstly in ASLEF v London Midland and RMT v Serco Ltd21 the Court of Appeal overturned High Court injunctions preventing a strike and instead accepted a s232B defence. Secondly in Balfour Beatty Engineering Services Ltd v UNITE22 the High Court refused to issue an injunction preventing a strike stating "trade unions may exercise their own judgment about what reasonable steps to take in order to comply with the statutory balloting requirements."23 This is important because if people know a union is effectively prevented from taking action to defend its members, they will be less likely to join. Thus union membership is threatened at an existential level if not an individual one. However, these gains appear to be short lived. The Trade Union Bill 2015-16 currently before Parliament provides in s2 for a mandatory 50% turnout for strike ballots and in s3 for a 40% support requirement for important public services. Clearly this will make it harder for unions to strike and therefore represents at threat to union membership.
In conclusion it is hard to see how English law could be described as robustly defending trade union membership. Although s161 TULRCA 1992 does provide some protection, we have seen how it is extremely difficult for a union member to prove what an employer's state of mind is when seeking protection under s146. The regulations on blacklisting appear to be grossly ineffectual despite the evidence that blacklisting was a widespread and longstanding practice in the construction industry. Moreover, if the Trade Union Bill 2015-16 comes into force (as appears likely) unions will find it even harder to strike to protect their members. This existential threat is a grave issue as no amount of legislation protecting individual union members will matter if unions themselves find it hard to exist due to falling membership. The government's recent trade union membership statistics note that "Around 6.4 million employees in the UK were trade union members in 2014...Current membership levels are well below the peak of over 13 million in 1979."24 Tellingly in his article on s146 protection Smith opens by saying the cases he is about to describe are "most unusually these days concerned with trade union law."25 This does not indicate that union membership is well protected.
2 Ibid para 17
4 Ibid para 1 19i
5 Ibid para 1 19ii
6 Ibid para 1 19iii
7 Ibid para 1 19iv
8 Smith, I "Employment Law Brief", New Law Journal(2014), 164 NLJ 7624 p10(1)
10 Holland, J & Burnett, S "Employment Law", Oxford University Press 2014 page 131
12 Ibid at para 53
14 Ibid at para 17
15 Ponting, L "An Odious Practice" Health and Safety Bulletin 439 HSB 7 1st June 2015 page 7
16 Hubert, S "An end to blacklisting?", Tolley's Employment Law Newsletter, ELN March 2010, 65 (2)
17 "An Odious Practice" page 7
18 Weir, C "Striking the balance", Tolley's Employment Law Newsletter, ELN April 2012, 78
21 2011 EWCA Civ 226
22 2012 EWHC 267
23 "Striking the balance", page 79
24 Trade Union Membership 2014, Statistical Bulletin June 2015, Crown Copyright 2015 at read the full document here, accessed 16th September 2015.
25 Smith, I "Employment Law Brief" page 10