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Bone v North Essex Partnership NHS Foundation Trust  EWCA Civ 45; (2016) EMPLR 015
1 February 2016
Court of Appeal
Laws, Floyd and Bean LJJ
The Court of Appeal has held that an employment tribunal was entitled to conclude that an employer’s failure to intervene in a dispute between two trade unions and to deal with personal insults between representatives amounted to imposing a detriment because of trade union activities.
B was a representative of WEU, an independent union. B had stood in the general election in 2010 as a candidate for the ‘English Democrats Party’, regarded by some as a right-wing party to which some BNP members had defected. UNISON representatives insulted the WEA, calling it ‘crypto fascist’ and asserting links with the BNP; and also insulted B by calling him ‘Adolf’ and saying he was a ‘bigot’. Applying its policy to remain neutral in disputes between unions, the Trust took no action over these insults. B made numerous complaints to a tribunal, including that the Trust, by taking no action, subjected him to a detriment to deter him from or penalise him for taking part in WEU’s activities.
The employment tribunal rejected most of B’s claims; but upheld those concerned with the insults referred to above. The EAT held that even those claims should not have succeeded because the employer’s motivation was only to remain neutral in union disputes.
The Court of Appeal restored the tribunal’s decision. It concluded that the tribunal was entitled to conclude that the Trust’s failure to deal with the insults, for example by taking disciplinary action against those who described the WEA as ‘fascist’ and B as a ‘bigot’, amounted to a detriment imposed for the purpose of preventing or deterring him from taking part in WEA’s activities.