05 February 2016 #Employment
In the case of Bone v North Essex Partnership NHS Foundation Trust , the Court of Appeal reinstated a tribunal’s decision that an employer’s failure to deal with hostility towards a union member was unlawful detriment. Workers are protected against suffering a detriment by any act, or any deliberate failure to act, by their employer if the act or failure to act takes place for the sole or main purpose of preventing or deterring them from taking part in trade union activities at an appropriate time.
Mr Bone, an employee of the Trust, was a member of UNISON as well as a well-known member of the Workers of England Union (WEU). Unlike UNISON, the WEU was not a party to the recognition agreement the Trust had with a number of unions and its presence was not warmly received. On four separate occasions during 2010, Mr Bone was subject to harassment by colleagues and UNISON representatives. This included being greeted with the words “Hello Adolf” by one colleague and described as a “bigot” by another. He also alleged that a UNISON official had sent an internal email to a colleague expressing concerns about the “creeping crypto fascism” of the WEU. Believing that the Trust had failed to deal with his complaints sufficiently, Mr Bone brought a claim in which he argued that he had been subjected to a detriment for a reason relating to his union activities.
His claim was upheld and the tribunal held that the Trust’s actions, or failure to act, showed an intention to prevent or deter Mr Bone from his union activities and make sure that others were not persuaded to join the WEU. The EAT overturned the decision on appeal and held that the tribunal had wrongly looked at the “foreseeable effect” of the Trust’s actions, which was not sufficient in order to establish liability.
The case did not end there, as Mr Bone successfully appealed to the Court of Appeal. At the original hearing, the tribunal rejected the Trust’s argument that it had been trying to remain “neutral” between UNISON and the WEU. The Court of Appeal held that the tribunal’s findings as a whole were that:
Consequently, it found that the tribunal had been free to find that Mr Bone had been subjected to a detriment for the main purpose of preventing him or deterring him from taking part in the activities of the WEU.