A former employee, who was a member of the pilots' union BALPA, made two applications for a role as a pilot with his previous employer, but was unsuccessful. During his previous employment with that employer, the individual had advocated that the union might have a role in representing the interests of pilots in the workplace. This led to a heated exchange with the employer's Executive Chairman. The union subsequently obtained a declaration of Union recognition from the Central Arbitration Committee, but there were issues in its relationship with the employer over subsequent years.

The EAT rejected the employer's argument that the tribunal had given too broad a meaning to "trade union membership" when it decided that the employee had been unlawfully refused employment because of his trade union membership. The EAT found that trade union membership in this context, does not just mean being a member of a union (e.g. simply carrying a union card), but also protects individuals from being refused employment because of their involvement in trade union activities that are incidental to trade union membership, such as seeking to be represented by the union in the workplace.

This case is also significant because the EAT confirmed that if a tribunal is satisfied that the person making the decision not to employ someone did so for a prohibited reason, the employer cannot rely on the fact that others in the business would have reached the same decision for other legitimate reasons to avoid liability.

PRACTICAL POINT
This decision clarifies that the protection afforded to job applicants from being refused employment because of their trade union membership, may be wide enough to protect them from being refused employment because of their activities related to their membership. Where an employer turns down a job application made by trade union member, it is important that they can explain the reasons for their decision and demonstrate that it is not because of the job applicant's union membership or any related activities.