The Employment Appeal Tribunal (EAT) has held that the provisions protecting individuals from being refused employment due to their trade union membership, extends to activities incidental to membership.

Jet2.com Ltd v Denby, EAT

Facts

Mr Denby, an airline pilot employed by Jet2, became increasingly involved with BALPA (the airline pilots’ union). He approached the Executive Chairman of the airline, Mr Meeson, to inform him that pilots wanted to be represented by BALPA. Mr Meeson indicated that he did not want the union involved. The following day he behaved in an aggressive and hostile manner towards Mr Denby.

Mr Denby subsequently left to work for another airline but in 2014 he applied to return. He passed all stages in the selection process but his application was rejected by the HR Director. He tried again the following year, but once again he was unsuccessful. He brought a claim against the company arguing that his employment was refused due to his previous trade union membership. Jet2 argued that he had been rejected for other reasons, including his negativity towards the company at the time of his resignation.

The tribunal upheld Mr Denby’s claim. It took a broad interpretation of the meaning of ‘membership’, to include activities related to his trade union membership. Jet2 appealed.

EAT decision

The EAT rejected the appeal. Statutory protection is not limited to the fact of an individual’s trade union membership, but extends to the way in which their membership was expressed. In Mr Denby’s case, it applied to his advocacy for BALPA having a greater role in the workplace. It did not matter that Mr Denby was no longer a member of BALPA at the date his application was rejected, since he had been a member at the time he carried out the relevant activities.

In the EAT’s view, it would leave an unacceptable gap in the statutory protection if a tribunal was unable to conclude that an employer’s objection to trade union activities that were incidental to membership, was not an objection to membership itself.

Consequences

This case provides clarification that protection from being refused employment for trade union membership will be broadly construed to include activities incidental to that membership. It is often difficult in practice, however, to distinguish activities such as promotion of the trade union in the workplace, from the manner in which the individual has conducted themselves while carrying out those activities. Employers need to tread carefully in such cases.

The EAT also confirmed that if the person making the relevant decision to reject a candidate did so for a prohibited reason, the claim will succeed even if others in the organisation may have reached the same decision for alternative (permissible) reasons.