In Bone v North Essex Partnership NHS Foundation Trust [2016] EWCA Civ 45 the Court of Appeal had to decide whether the employer’s failure to deal with bullying and harassment of a trade union member by other employees was for the main purpose of preventing or deterring the employee from taking part in trade union activities or penalising him for doing so.

Facts

Mr Bone worked for the North East Essex Partnership NHS Foundation Trust (the Trust), as a Registered Mental Health Nurse. Mr Bone was a member of Unison and also of another small trade union, the Workers of England Union (WEU).

The Trust recognised Unison and had a working in trust partnership agreement with it, alongside other trade unions. The WEU was not a party to that agreement and was not recognised by the Trust for collective bargaining.

In 2011, Mr Bone brought a claim in the employment tribunal alleging that a large number of acts or omissions over the preceding two years constituted either racial discrimination or detriment on grounds related to his trade union activities.

Background

Under section 146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, a worker has the right not to be subject to any detriment as an individual by any act, or any deliberate failure to act, by his employer, if the act or failure takes place for the sole or main purpose of:

  1. preventing or deterring them from being, or seeking to become, a member of an independent trade union, or penalising them for doing so;
  2. preventing or deterring them from taking part in the activities of an independent trade union at an appropriate time, or penalising them for doing so;
  3. preventing or deterring them from making use of trade union services at an appropriate time, or penalising them for doing so; or
  4. compelling them to be or become a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions.

In order for an employer to defend a claim of unlawful detriment on trade union grounds, it will need to show that the purpose or main purpose of any act or deliberate failure to act was not in connection with any of the above. In other words, it will need to demonstrate what the purpose or main purpose of any such act was.

Employment tribunal decision

The employment tribunal (ET) dismissed Mr Bone’s claim of race discrimination. However, it upheld four complaints under section 146 and found that these four incidents amounted to unlawful detriment on trade union grounds:

  1. On the eve of the 2010 general election, in which Mr Bone was a candidate of the English Democrats, a fellow employee and Unison representative, Mr Adshead, circulated an email suggesting that WEU was linked with fascism and the British National Party. The Trust failed to deal with this matter in accordance with its disciplinary procedures and dignity at work policies.
  2. At a meeting in May 2010, a nursing colleague of Mr Bone described him as a “bigot”. Whilst the remark was not made in Mr Bone’s presence, it was later reported to him. The employee who made the comment was spoken to on an informal basis by her line manager but no formal action was taken.
  3. In May 2010, Mr Adshead greeted Mr Bone with the words “Hello Adolf”. The Trust did not deal with this matter effectively, nor did it require Mr Adshead to apologise to Mr Bone.
  4. In December 2010 a local Unison branch official, Mr Hutchison, sent an email to another employee of the Trust expressing concerns about “creeping crypto fascism” of the WEU. The ET took the view that the email was a consequence of the Trust management’s “weak and lamentably ineffective conduct” in failing to protect Mr Bone.

In respect of the above, the ET found that the main purpose of the Trust, in failing to act and take appropriate action against its employees, was effectively to discourage Mr Bone from his trade union activities with WEU and make sure that others were not tempted to join him for fear of the harassment they would suffer. The ET found that the Trust should have taken a more robust and effective response to the above matters and its failure to do so was to deter Mr Bone from taking part in the activities of an independent trade union or to penalise him for those activities.

EAT decision

The Trust appealed to the Employment Appeal Tribunal (EAT), which first upheld the appeal on the grounds that WEU was not an independent trade union and, as such, the ET did not have jurisdiction to hear the case. That decision was overturned by the Court of Appeal and the matter then went back to the EAT, which upheld the Trust’s appeal on the grounds of perversity. Mr Bone then appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal carefully reviewed and analysed the ET findings and was satisfied that there was sufficient evidence to uphold its conclusions that Mr Bone had been subjected to a detriment on trade union grounds. Specifically, the Court of Appeal found that:

  1. The Trust’s main purpose in not taking action as it should have done was to eliminate, or at least to marginalise, the influence of Mr Bone and the WEU at the workplace;
  2. The Trust was well aware that this might be the consequence of its inaction; and
  3. The Trust was motivated by a desire to placate Unison and thus achieve a quiet life.

The Court of Appeal was also satisfied that the original ET did not confuse the purposes of the Trust with the purposes of Unison, being the recognised trade union. Whilst Unison was motivated by a desire to eliminate the influence of WEU within the Trust, the ET was aware of this but ultimately found that this was the underlying purpose of the Trust’s inaction in dealing with the conduct of other employees and union officials which was directed at Mr Bone.

Comment

The circumstances of this case were slightly unusual, in that Mr Bone was a member of two different trade unions, only one of which was recognised. However, a trade union does not need to be recognised by the employer for the individual employee to have protection against being subjected to a detriment on trade union grounds under section 146.

It was clear in this case that neither Unison nor the Trust welcomed the influence of the WEU in the workplace. However, the Trust sought to argue that its purpose or main purpose in acting the way it did was to try and remain neutral in any conflict between Unison and the WEU. The ET, and ultimately the Court of Appeal, did not accept this and found that the main purpose of the Trust was to support a position that would marginalise Mr Bone and his activities with the WEU. Indeed, the ET stated in its judgment that:

“The Respondent’s lamentable failure to investigate, suspend and discipline those responsible who were their employees, despite their trade union membership, was remarkable. This was a striking example of an employer’s failure to protect an employee from a campaign of harassment and bullying, pursued with a disturbing degree of spitefulness…

It is important to remember in claims of this kind that it is not enough for an employee to show that his employer’s actions or inactions have the effect of causing a detriment in connection with trade union activities. The employee has to show that the purpose, or main purpose of the employer, was to prevent or deter the employee from undertaking various trade union activities, or penalising him from doing so.

This case serves as a useful reminder to employers to ensure that all allegations of bullying and harassment are fully investigated and addressed objectively and fairly through their own disciplinary, grievance and other procedures.