Ltd v Denby UKEAT/0070/17

Why care?

Under TULRA 1992, it is unlawful to refuse to employ a person because they are, or are not, a member of a trade union, or because they refuse to join or leave a trade union.

Although the law says “membership”, the courts have held that it is wrong to draw a rigid distinction between trade union membership and activities. If a member is refused employment because of his or her trade union activities, a tribunal may conclude that this was because of his or her membership.

In this case, the EAT decided that an airline should not have decided not to re-employ a pilot because of his historical union activities.

The case

The Claimant was an airline pilot who belonged to the British Airline Pilots’ Association (BALPA) and who worked for the Respondent between 2005 and 2011. In 2007, he became chairman of its Flight Deck Crew Council, and also became more involved with BALPA activities.

In July 2009, the Claimant told the Executive Chairman of the Respondent, Mr Meeson, that pilots believed they should be represented by BALPA. Mr Meeson disagreed in the strongest possible terms. Despite Mr Meeson’s disapproval, BALPA was granted statutory recognition in 2010.

In 2011, the Claimant left the Respondent to work for another airline. The Respondent expressed disappointment and thanked him for his loyalty, but was later concerned that the Claimant might have been encouraging others to join his new employer.

In 2014, he applied to work for the Respondent once more. He passed the initial stages of the selection tests, but when his application reached the HR director, it was rejected. The Claimant applied once more in September 2015, but received no response.

The Claimant then emailed Mr Meeson, who emailed the Respondent’s Director of Flight Operations, telling him that the Claimant “was a shop steward at his previous company [….] – so I don’t know why this leopard will change his spots”.

When the Claimant’s application was rejected for a second time, he brought a tribunal claim arguing that his application was unsuccessful because he was a member of BALPA. The Respondent disagreed, claiming that he had been rejected because of other reasons, in particular his “negativity” towards the company when he left in 2011.

The tribunal held that it was required to follow Harrison v Kent County Council (1995), in which the EAT said that “in reality, the persons most likely to be discriminated against are those who have been most active”, and by Article 11 of the ECHR (the right to freedom of association). The decision to block his application had been taken by Mr Meeson, who had a “continuing animus” towards the Claimant because of his previous advocacy on behalf of BALPA, activity that was connected to his membership.

The EAT dismissed the Respondent’s appeal.

Trade union membership under s137(1) of TULRCA should be construed broadly. It was not concerned with “the mere fact of carrying of a union card”, but was concerned with the status of the particular applicant. An employer would usually (except in cases where there is a ‘blacklist’, which are themselves unlawful) be aware of union membership only through the way in which the individual expressed his or her membership. There is no clear divide between trade union membership and activities, and it would leave a gap in the protection intended by Parliament if a tribunal was able to find that an objection to trade union activities was not also an objection to membership. The tribunal was correct to apply Harrison.

In any case, Article 11 of the ECHR and the European Court of Human Rights’ decision in Wilson and others v United Kingdom meant that a broader approach to the meaning of “membership” in TULRCA was necessary.

The tribunal was correct to find that in this case, Mr Meeson refused to re-employ the Claimant because of his earlier activities. The Claimant had been a member of BALPA when he advocated BALPA’s role in collective bargaining, so it did not matter that he no longer had membership. Seeking to be represented by BALPA was an essential example of union activity and not incidental to his membership.

Although other members of staff at the Respondent may have had unrelated reasons for rejecting the Claimant’s applications (such as concerns over his loyalty and behaviour when he resigned), this was not relevant, as it was Mr Meeson who had made the decision.

If a tribunal needs to consider what was in the mind of the decision-maker, and not the tainted reasoning of others within an organisation (see CLFIS (UK) Ltd v Reynolds (2015), a discrimination case), then it must also be the case that, if the decision-maker made that decision for unlawful reasons, the employer cannot escape liability by saying that others would have made the same decision for legitimate reasons.

What to take away

Blacklisting (the complying, maintaining, selling or supplying of lists of current or former trade union members or activists) is unlawful. In this case, the employer had no need of a list since it had direct experience of the Claimant’s previous union membership and activities.

The decision is a reminder that the use of this kind of information is also unlawful, and that it makes no difference – as here – whether the employee is a past or current trade union member, or even whether there may have been other good reasons not to re-employ him, if they were not considered by the decision-maker.