In Ltd v Denby, the EAT has upheld an employment tribunal ruling that Limited had unlawfully discriminated against a prospective pilot as a result of his past activities as a member of a trade union.

Mr Denby had been a pilot for Jet2 in the past and, whilst working for the company, had actively campaigned for the British Airline Pilot’s Association (BALPA) to represent pilots of the airline. Jet2’s Executive Chairman did not want to recognise BALPA and was hostile to Mr Denby’s suggestion. The matter went to arbitration, where the Central Arbitration Committee ordered Jet2 to recognise BALPA, and then resulted in further litigation on the grounds that Jet2 had failed to comply with the CAC’s ruling.

Mr Denby subsequently left Jet2 to work for another airline, but in 2014 he applied to return to Jet2. Mr Denby passed all stages of the selection process, however the Flight Operations Director blocked Mr Denby’s application.

In 2015, Mr Denby applied again to Jet2. Mr Denby had, by this time, ceased to be a member of BALPA. Jet2 did not respond to Mr Denby’s application. However Jet2’s Executive Chairman emailed the Flight Operations Director to say that Mr Denby “told me that 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”. Following confirmation that his application had been unsuccessful, Mr Denby brought an employment tribunal claim arguing that he had been unlawfully refused employment because he was a member of a trade union. 

An employment tribunal found in Mr Denby’s favour, concluding that ‘membership’ of a trade union should be interpreted broadly and included advocating on behalf of a trade union (as Mr Denby had done when previously employed by Jet2). Jet2 argued unsuccessfully that there were other reasons for the rejection of his application.

Jet2 appealed on several grounds, one of which was that the trade union protections did not include past membership activities. The EAT rejected these arguments, confirming that membership of a trade union was a broad term which included past membership activity, consequently upholding the employment tribunal ruling that Mr Denby had been treated unlawfully by Jet2.

This case acts as a reminder to employers that trade union “activities” and “membership” will be interpreted broadly by employment tribunals. Employers should beware of making any decision on the basis any trade union activities or membership, whether recent, or some time in the past.