Southwark London Borough Council v Whillier

For section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, action is not confined to a discrete positive act and is not excluded merely because the conduct can also be described as an omission. The tribunal may assess the employer’s conduct in the round. An offer of promotion without the salary ordinarily attached to it, conditional on relinquishing trade union duties, may constitute action against the employee for the purpose of deterring trade union activity. The Court left open whether section 146 requires an additional detriment, because the conduct in this case was itself detrimental.

Ms Whillier, an employee and branch secretary of Unison, claimed that Southwark had taken action short of dismissal under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. The claim concerned an offer of promotion to a higher grade without the associated salary until she gave up her trade union duties. The Employment Tribunal dismissed her wages claim but upheld the section 146 claim. The Employment Appeal Tribunal dismissed Southwark’s appeal on that issue. The Council argued that withholding the salary was an omission rather than action, and that section 146 required detrimental action. The central issues were the proper characterisation of the conduct and whether additional detriment was required.

Lord Justice Waller delivered the judgment of the Court of Appeal. Lady Justice Hale and Sir Philip Otton agreed. The appeal was dismissed.

1. Action and omission. The Council’s reliance on Associated Newspapers Ltd v Wilson and Associated British Ports v Palmer [1995] 2 AC 469 (HL) was too broad. Those cases concerned employees who had no legitimate right or expectation of a pay increase and who simply continued on their existing terms. They established that the statutory definition did not convert an omission into action in that context. They were not authority that conduct partly capable of being described as an omission could never amount to action. The tribunal was entitled to find that offering promotion without the salary attached to the new post, and deciding that the post could not be taken up during trade union release, constituted action.
2. Assessment of the conduct and purpose. Department of Transport v Gallacher [1994] ICR 967 showed that the relevant action may be assessed by considering the employer’s conduct as a whole. The tribunal had to determine whether action short of dismissal had been taken against the employee for the purpose of preventing or deterring participation in trade union activities. That was essentially a factual question, and the tribunal was entitled to find the required purpose.
3. Detriment. The Court left open whether the words action against and short of dismissal required some additional detriment. That issue was unnecessary to decide. On the facts, offering promotion without the proper salary until the employee relinquished trade union office was itself detrimental. The obvious inference was that the full salary would have been offered if she had not been conducting trade union activities.

Appeal dismissed with costs of £4,186.

1. Court of Appeal (Civil Division): On 25 May 2001, dismissed Southwark’s appeal on the section 146 issue. The judgment is reported at [2001] EWCA Civ 808.
2. Employment Appeal Tribunal: On 3 March 2000, Burton J allowed Southwark’s appeal on the sex discrimination claim but dismissed its appeal concerning section 146.
3. Employment Tribunal: Dismissed the unlawful deduction of wages claim and upheld Ms Whillier’s claims concerning sex discrimination and action short of dismissal.