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Employment Law

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Veale Wasborough Vizards , 13 NOV 2017

Employment and Trade Union activities that are incidental to membership

Employment and Trade Union activities that are incidental to membership
Lorna Scully
Senior Associate,
Veale Wasbrough Vizards

You will probably already be aware that it is unlawful to refuse to employ someone because they are (or are not) a member of a trade union.

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However, in a recent decision by the Employment Appeal Tribunal (EAT), it was held that it is also unlawful for employers to refuse employment due to trade union activities that are incidental to membership.

The relevant case was brought by Mr Denby who had worked as an airline pilot for Jet2. Throughout his time working for Jet2, Mr Denby had become increasingly involved with the trade union, British Airline Pilots' Association (BALPA). In 2009 Mr Denby had suggested to the company's Executive Chairman, Mr Meeson, that BALPA should have a greater role in representing the pilots in the workplace. Mr Meeson's response made it clear that he did not want the union to be involved and the following day he spoke rudely to Mr Denby, displaying hostility towards BALPA and the suggestion that it should have any role in collective bargaining.

In 2011, Mr Denby left Jet2 to work for another airline. He later applied to return to Jet2 on two occasions but, despite him passing the selection exercise, his applications were rejected. Following his second application, Mr Denby emailed Mr Meeson and, although Mr Meeson did not reply to Mr Denby, he did send an internal email to Jet2's Director of Flight Operations in which he said of Mr Denby, "He told me he was a shop steward at his previous company before us as well - so I don't know why this leopard will change his spots."

Mr Denby brought a claim in the Employment Tribunal (ET), arguing that he had been refused employment because of his trade union membership. The ET upheld the claim, concluding that Mr Meeson had taken the decision to refuse Mr Denby employment as a result of Mr Denby's past advocacy for BALPA. The ET noted that it was not merely the fact that Mr Denby was a member of BALPA, but the fact that he had undertaken activities which related to his membership (by advocating for BALPA) that had led to the decision; but it concluded that a broad interpretation of the term trade union membership was appropriate which included activity that was related to trade union membership.

Jet2 appealed, arguing that the ET had adopted too broad an approach to the interpretation of the term trade union membership. The EAT rejected the appeal, holding that trade union membership should not be construed so narrowly as to mean the mere fact of carrying a union card, as this would leave an unintended gap in the protection. It was satisfied that the ET were entitled to conclude that an objection to trade union activities which are incidental to membership is an objection to trade union membership itself.

Best Practice

This case is a useful reminder to employers that they must not subject employees, or prospective employees, to negative treatment because of their involvement with a trade union.

The case also provides yet another cautionary example of the contents of internal communications coming back to bite. So often we see ill-considered comments, frequently resulting from moments of frustration and never intended for wider circulation, providing evidence that supports an opponent's case. Employers should remain mindful that may be obliged to disclose internal notes or emails in subsequent proceedings and take care that the sentiments they express reflect their considered view.