In Miller and others v Interserve Industrial Services Ltd UKEAT/0244/12 the Employment Appeal Tribunal has dismissed the appeal of three trade union members who claimed that they had been refused employment on the grounds of their union membership.
Rights in Relation to Union Membership
TULCRA 1992 – access to employment
Section 137 (TULCRA) 1992 relates to union membership and activities and access to employment. Section 137 (1) states it is unlawful to refuse to employ a person because they are a member (or are not a member) of a trade union, or because they refuse to join or leave a trade union
The Blacklists Regulations 2010 – prohibited lists
Protection is also provided to trade union members by the Blacklists Regulations under regulation 3 which provides a general prohibition on compiling, using, selling and supplying “prohibited lists” subject to certain exceptions. Prohibited lists are lists containing details of people who are or have been trade union members or people who are taking part or have taken part in trade union activities and compiled with a view to being used by employers or employment agencies for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers. Under the Blacklists Regulations workers therefore have rights not to be refused employment or be subjected to detriment or dismissal for a reason connected to a prohibited list.
In Miller and others v Interserve Industrial Services Ltd the Employment Appeal Tribunal considered two points:
- To what extent Interserve Industrial Services Ltd had refused to employ the three union members "because of" their trade union membership; and
- Whether Interserve had created a "mental list" which could be a prohibited list for the purposes of the Blacklists Regulations.
Interserve provides labour at oil depots for "shutdown projects". The three claimants were scaffolders and members of UNITE, and had a history of acting as shop stewards. They had previously been involved in organising industrial action at another contractor`s project but which had also affected employees supplied to Interserve.
Interserve was party to a collective agreement with UNITE which provided that Interserve should try to place senior stewards onto projects and that, where possible, shop stewards should be selected from their workforce.
In March 2010, Mr Card, a UNITE official, telephoned Mr Jenkins who was Operations Manager for Interserve and decision maker on recruitment. Mr Card proposed the claimants for employment on a project making it clear that he viewed the provision of the collective agreement above as giving the union the right to nominate its members for recruitment and that Mr Jenkins should therefore recruit the claimants on that basis. Mr Jenkins did not employ the claimants on that project. Two of the claimants applied for another project and were also unsuccessful.
The union members brought claims to the Employment Tribunal arguing that they had not been recruited because of their union membership and/or activities.
The Employment Tribunal’s decision
The Tribunal accepted that because of the conversation with the UNITE official, Mr Jenkins decided that the claimants would not be recruited. In particular, the Tribunal found that Mr Jenkins had made a "mental list" consisting only of the three claimants, which was a list of those who he did not wish to employ.
However the Tribunal rejected the argument that Mr Jenkins` decision not to employ the claimants was “because of” their union membership. Rather that Mr Jenkins had refused to employ the claimants because of his perceptions of bullying from the UNITE official and that
"He was, in terms, not going to be told who to employ...Mr Card had called and pressed the matter in circumstances where Mr Jenkins felt that it was his right to recruit who he thought was best without such influence".
As such the mental list was found not to breach the Blacklists Regulations, because it was not used for the purposes of discrimination on grounds of trade union membership or activities.
Another reason from the Tribunal on why the claimants could not succeed, although not argued by the parties, was that if Mr Jenkins had recruited the claimants as instructed by Mr Card, this would have been an "arrangement or practice" of only employing people put forward by a trade union, which is prohibited by section 137(4) of TULRCA. It was therefore lawful for Mr Jenkins to refuse to enter into such an arrangement.
The claimants appealed.
The Employment Appeal Tribunal’s decision
The EAT dismissed the appeal, accepting that Interserve’s Operation Manager’s decision not to employ the claimants was not because of their union membership or activities but instead agreeing that it had been driven by resenting the UNITE official’s interference regarding who he must employ. Any “mental list” created was also found not to have been used for purposes of discrimination within the scope of the Blacklists Regulations.
They agreed with the Tribunal that a decision motivated by resentment at the pressure from the UNITE official was "genuinely distinct" from the issue of being asked to select the claimants. If the Operation Manager’s decision related to Mr Card`s conduct rather than to the characteristics of the claimants, then it was permissible i.e.
“...objecting to recruiting them, not because of their membership or activities or indeed because of anything about them personally – but simply because they happened to be the ones who Mr Card was, as he saw it, trying to force down his throat”.
The EAT also noted that other employees who had taken part in the industrial action at another project that had also affected Interserve had been recruited for the project in question for which the claimants were not.
On the section 137(4) TULRCA point ("arrangement or practice" of only employing people put forward by a trade union) the EAT disagreed with the Tribunal that even if the Operations Manager had agreed to recruit the union members this would not amount to an arrangement or practice to offer employment only to persons put forward by trade unions. Interserve could still make its own decision on who to employ in future. These comments were however observations of the EAT and not binding.