F W Farnsworth Ltd v McCoid

Under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, as an individual is not confined to action affecting an employee’s general employment terms. Direct action against a particular Shop Steward, including derecognition, may qualify even though the detriment concerns union office. The phrase excludes indirect or derivative complaints arising only from action against a union as a collective body. Whether the action is properly characterised as individual depends on the statutory and factual context. The tribunal must also determine whether it was taken for the prohibited union-victimisation purpose.

The respondent was employed by the appellant and held office as a recognised union Shop Steward. The appellant derecognised him, but his employment terms were unchanged. He complained under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, alleging action short of dismissal for trade union activities.

The Industrial Tribunal and the Employment Appeal Tribunal decided on a preliminary issue that derecognition was capable of being action taken against him as an individual. The employer appealed. The central issue was whether the statutory words excluded action affecting an employee only in the capacity of a Shop Steward.

1. Disposition. Lord Woolf MR, Lord Justice Otton and Lord Justice Ward dismissed the appeal. The matter was remitted to the Tribunal, with costs.
2. Statutory meaning. Lord Woolf held that the words as an individual were capable of applying where an employer directly acted against a particular employee who happened to be a Shop Steward. They did not require a change to the employee’s ordinary contractual position. Otton LJ agreed, giving the words their everyday meaning and treating derecognition as direct action against the employee. Ward LJ reached the same conclusion after initial hesitation.
3. Collective and derivative complaints. The statutory words exclude complaints where action is taken against a union as such and employees are affected only consequentially as members or officers. They do not exclude a complaint that an employer singled out an individual union official. The agreement between the employer and the union was therefore not determinative of the preliminary issue.
4. National Coal Board v Ridgeway. The Court of Appeal’s majority decision in [1987] ICR 641 concerned a collective dispute in which union members suffered a direct loss of pay. Its observations had to be read in that context. The two questions identified by Bingham LJ were applied: whether the action was capable in law of being regarded as against the employee as an individual, and whether, on all the facts, it should be so regarded. The first was a question of law. The second was for the Industrial Tribunal, not the appellate court.
5. Purpose and merits. The employer could still defeat the complaint by proving that derecognition was not intended to prevent, deter or penalise union activities, but was undertaken because the employee was unsuitable to hold office. That issue remained for determination on the facts.

• Court of Appeal: Dismissed the employer’s appeal and remitted the matter to the Tribunal, with costs.
• Employment Appeal Tribunal: On 27 March 1998, reached the same view on the preliminary issue that derecognition of the Shop Steward was capable of being action taken against him as an individual.
• Industrial Tribunal: Had reached that conclusion on the initial preliminary issue.