Workers have the right not to be subjected to a detriment by their employer when taking part in the activities of an independent trade union. In Bone v North Essex Partnership NHS Foundation Trust, the Court of Appeal held that the question of a trade union’s independence did not affect the employment tribunal’s jurisdiction to hear a claim when deciding whether the worker had actually suffered a detriment.
Basic facts
Mr Bone was a registered mental nurse who had worked for the Trust since June 2006. In April 2009 he became involved with the Workers of England Trade Union (WEU), in addition to being a member of Unison.
In January 2011 Mr Bone brought a tribunal claim on two counts - firstly that he was the victim of race discrimination; and secondly that he had suffered detriment on grounds related to union activities contrary to section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act (TULRCA).
Relevant law
Section 146(1)(b) of TULRCA states that workers have the right not to be subjected to any detriment by any act, or any deliberate failure to act, by their employer if the sole or main purpose is to prevent or deter them from taking part in the activities of an independent trade union at an appropriate time, or penalising them for doing so.
Decisions of tribunal and EAT
The tribunal rejected Mr Bone's claim for racial discrimination, but upheld his claim under section 146 that the Trust had failed to respond robustly enough to four complaints that he had made and which he argued had penalised him for taking part in the activities of an independent trade union at an appropriate time.
The EAT overturned that decision on the basis that the WEU was not an independent trade union at the relevant time (it only received its certificate of independence in 2013) and the tribunal did not therefore have jurisdiction to hear his claims.
Mr Bone appealed, arguing that the Trust had not questioned the WEU’s independence and the EAT should not have allowed this new line of defence to be dealt with on appeal.
Decision of Court of Appeal
And the Court of Appeal agreed, holding that the question of a trade union’s independence did not affect the jurisdiction of the employment tribunal in a claim under section 146. If Parliament had intended to make possession of a certificate of independence a pre-condition for the issuing of proceedings under section 146, it would have done so.
As the Trust had not disputed whether the union was independent when it responded to Mr Bone’s claim and did not raise the issue at the pre-hearing review, the EAT was wrong to decide that the tribunal did not have jurisdiction to hear the claim and should have refused to allow the Trust to advance this new line of defence on appeal.
It also held that although the union did not get its certificate of independence until 2013, it was inevitable that it was independent for a “modest period” before that date. In this case, the Court said that it was hard to imagine a union that was less “subservient” to the employer than the WEU. There was therefore little doubt that the certificate awarded in 2013 reflected the position in 2010. If the EAT was unsure about this, it should have asked the Certification Officer to clarify the point.
Finally, the Court held that the legislation had to be construed in such a way that, when necessary, the Certification Officer could determine the “historic status” of a trade union.
Comment
“Jurisdiction” is whether a tribunal has the legal power to decide a dispute. It cannot do so unless it has jurisdiction. Any given claim will have several elements which must be made out for a claimant to win. A tribunal having jurisdiction will decide whether the elements of that claim have been proven. The EAT mixed these two concepts up in Mr Bone’s case but the Court of Appeal put it right.