Trade union detriment and costs

The Employment Appeal Tribunal (EAT) has confirmed the correct test in trade union detriment cases and made a surprising costs award, reports Michael Halsey.

In North Essex Partnership NHS Foundation Trust v Bone the employee (B) was employed by North Essex Partnership NHS Foundation Trust (the Trust). He was a member of the Workers of England Union (WEU) and UNISON. He sued the Trust, arguing that he had been subject to a detriment owing to his trade union activities.

He was successful at the Employment Tribunal on the basis that the Trust's actions, or failure to act, in four instances when B's colleagues had connected B and/or the WEU to fascism or bigotry, had prohibited or deterred B from taking part in trade union activities contrary to Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

On appeal, the EAT overturned the Tribunal's decision. The EAT said that assessing the likely effect of the Trust's actions was the incorrect test to have applied. Liability can only be established when the employer's act, or failure to act, is deliberately done or not done for an improper purpose (ie the employer has to intend to cause the detriment).

The EAT also ordered the Trust to pay some of B's costs in relation to an aspect of the case that the EAT itself had encouraged the Trust to argue.

This has been a long running case and at an earlier hearing in front of the EAT, the judge encouraged the Trust to question whether the WEU was an independent trade union as a means of potentially ending B's claims. This point went to the Court of Appeal which ruled that the WEU was an independent trade union.

When ordering the Trust to pay some of B's costs the EAT stressed that it was ultimately the Trust's decision to run the argument about the WEU's independence, despite the encouragement it received at the earlier EAT hearing. There were also criticisms of the Trust, in particular that the issue of the WEU's independence should have been raised earlier in the litigation process.

Best practice

This case reinforces the fact that it is unlawful to intentionally prevent or deter an employee from taking part in the activities of an independent trade union. Assessing the foreseeable effect of an employer's actions is the wrong approach.

It also highlights the importance a party should place on identifying its most effective lines of argument at an early stage in the litigation process and remaining open to withdrawing arguments that have been overtaken by events.

Michael Halsey is a Partner at Veale Wasbrough Vizards. He can be contacted on 0207 665 0842 or This email address is being protected from spambots. You need JavaScript enabled to view it..