Union member suffered an unlawful detriment

A union member suffered an unlawful detriment because his employer failed to deal with hostility towards him resulting from his trade union membership.

Mr Bone was employed as a nurse by North Essex Partnership NHS Foundation Trust. As well as being a member of the UNISON trade union he became involved in the Workers of England Union (WEU). Although the Trust has in place recognition agreements with various trade unions, the list did not include the WEU. Mr Bone became an activist for the WEU and an employment tribunal found that local UNISON officials therefore set out to intimidate him, with the purpose of driving the WEU from the Trust.

In 2010, Mr Bone stood for election for the English Democrats in Colchester. An employment tribunal heard that at that time, a colleague and UNISON representative sent an email which suggested that the WEU was linked with fascism and the British National Party, the same colleague later greeting Mr Bone with “Hello Adolf”. There were further allegations that another colleague had referred to him as a bigot and a third had expressed concerns about the WEU and “creeping crypto-fascism”.

The employment tribunal found that although the Trust was aware of these incidents, it had failed to deal adequately with the complaints. It found that Mr Bone has suffered a detriment as a result of his trade union activities. The Employment Appeal Tribunal (EAT) overturned the employment tribunal’s decision reasoning that it had gone too far in finding that the Trust was trying to eliminate the WEU’s influence and citing a finding that the Trust’s intention had been to maintain its neutrality. The Court of Appeal disagreed, pointing out that the tribunal had made a finding of fact that the Trust’s failure to act had come from it’s desire to ‘lead a quiet life’ on the trade union front which amounted to a ‘dereliction of duty’. The employment tribunal’s decision that Mr Bone had suffered a detriment as a result of his trade union activities was restored.

This case is a reminder to employers that the Trade Union and Labour Relations (Consolidation) Act 1992 provides workers with protection from detriment “on the basis of any act, or any deliberate failure to act, by their employer if the act or failure takes place for the sole or main purpose preventing or deterring them” from being an member of an independent trade union or taking part in its activities, at an appropriate time.

Bone v North Essex Partnership NHS Foundation Trust [2016] EWCA Civ45

11 February 2016

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