Industrial relations: Can we reject a candidate on the basis of their union activity?

It is unlawful to refuse an individual employment on the basis that they are (or are not) a member of a trade union. But how far does this protection…

Employees are given various protections in the UK from being subject to detriment in relation to their membership of a trade union.  This is set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the Act’). 

In Jet2.com Ltd v Denby the Employment Appeal Tribunal considered whether it was lawful for an employer to refuse to employ someone on the basis of his previous involvement with a trade union

What protection do employees have?

The Act protects against detriment or dismissal by the employer where this is because of the employee’s trade union membership, involvement in union activities, or use of union services.

Further, the Act protects prospective employees by rendering it unlawful to refuse employment to a person because he is a trade union member.  However, the relevant section does not explicitly state whether this protection extends to union activities, or the use of union services. 

What happened?

Mr Denby was a pilot, who had previously been employed by Jet2.com.  During this previous employment he had been a member of the pilot’s trade union, BALPA. In 2009 he advocated to Jet2.com’s Executive Chair that BALPA might have a role in representing the interests of pilots within the workplace.  This suggestion was met with aggressive resistance.  During one exchange the Executive Chair used extremely abusive language towards Mr Denby to reject his suggestions.

In 2011 Mr Denby left Jet2.com.  In 2014 he applied to return, but despite passing all stages of the selection exercise, his application was rejected.  In 2015 he reapplied but was again rejected.  He subsequently raised concerns that, although he was no longer a union member, his application had been rejected by the Executive Chair because of his previous advocacy for the union.  Internal emails at the time showed that the Executive Chair had said Mr Denby: “…told me that he was a Shop Steward at his previous company before us as well, so I don’t know why this leopard will change his spots”.

Mr Denby subsequently brought a claim to the Employment Tribunal arguing that he had been refused employment because of his trade union membership. 

What was the decision at Tribunal?

The Employment Tribunal found that Jet2.com had breached the protection afforded to Mr Denby under the Act.  On the facts, they held that the decision to refuse Mr Denby employment was taken by the Executive Chair, and his reason was not the mere fact that Mr Denby was a BALPA member, but because of Mr Denby’s past advocacy for the union (an activity that was related to Mr Denby’s trade union membership).  

The Employment Tribunal considered that they were bound by the earlier decision of the Employment Appeal Tribunal in Harrison v Kent County Council and therefore adopted a broad interpretation of membership, to include the carrying out of union activities.  The Tribunal added that it would, in any event, have taken a broad approach to the interpretation of ‘membership’ as this was consistent with the right to freedom of association under the European Convention on Human Rights. 

Therefore, it concluded that the Act protected Mr Denby from rejection. 

Was this decision supported on appeal?

The EAT dismissed Jet2.com’s appeal. Jet2.com argued that the interpretation of membership should be limited to the mere fact of membership. The EAT held that the broad interpretation used by the Tribunal, and following the approach adopted in Harrison, should be applied.  There was no clear divide between trade union membership, and the carrying out of union activities.  To create such a divide would, said the EAT, leave a gap in the legislation which was clearly not intended

The EAT also concluded that the Tribunal was justified in finding that the reason for Mr Denby’s rejection was his previous advocacy. 

What does this mean for me?

In light of this decision, you must be very careful when rejecting an applicant for any reason relating to union membership.  This broad interpretation means that the Act will be breached where the rejection is not simply due to the fact of membership, but because of the prospective employee’s involvement in union activities. 

It is also entirely plausible that the protection under the Act could also be afforded to those who are rejected for their use of union services.  This would effectively provide applicants with the same level of protection as employees.

Further, it should be noted that the Tribunal only needs to be satisfied that the person making the decision to reject did so for the prohibited reason.  It is irrelevant that another person may have arrived at the same decision but for legitimate reasons.

Paul McFarlane (paul.mcfarlane@weightmans.com) and Rebecca Hyde (rebecca.hyde@weightmans.com) are members of our London Employment Pensions and Immigration team. Paul has extensive experience of advising employers on all aspects of the law of industrial relations. If you have any questions, please do not hesitate to contact Paul or speak your usual Weightmans advisor.

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