Miller v Interserve Industrial Services Ltd

In trade union discrimination claims, the relevant question is what operated on the decision-maker’s mind. A mere but for connection with trade union membership or activity is insufficient. The protected status or activity must have formed at least part of the conscious or subconscious motivation for the treatment.

An employer may, in principle, object to pressure or interference by a union official rather than to the individual’s membership or activities. That distinction is fact-sensitive and requires careful scrutiny, particularly where a proposed recruit is a union activist or shop steward.

Three scaffolders, all members of UNITE, applied for employment on shutdown projects operated by Interserve. A UNITE official pressed the respondent’s operations manager to recruit them, referring to a collective agreement and their prospective role as shop stewards. The manager decided not to recruit them.

The Employment Tribunal found that the manager reacted to what he regarded as bullying and interference with his freedom to select employees, rather than to the claimants’ trade union membership or activities. It dismissed claims under section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 and regulation 5 of the Employment Relations Act 1999 (Blacklists) Regulations 2010. The claimants appealed.

1. Appeal dismissed. The Tribunal was entitled to find that the claimants were not refused employment because of trade union membership or activities. The decisive issue under both statutory regimes was the manager’s actual motivation.
2. The statutory formulations such as because of and on grounds of require examination of the decision-maker’s mental processes, sometimes described as motivation rather than motive. A but for causal link is insufficient. The protected membership or activity must have operated, consciously or subconsciously, on the decision-maker’s mind as at least part of the reason for the treatment.
3. It was permissible in principle to distinguish between objecting to the candidates because they were union members or activists and objecting to the conduct of the union official who was pressing their recruitment. The latter could be a reaction to perceived unacceptable pressure, with the identities of the individuals being immaterial. The distinction remained a question of fact and could be a cover for discriminatory motivation.
4. On the evidence, the Tribunal had clearly found that the manager wished to retain his freedom to recruit whom he considered best and reacted to the pressure applied by the union official. Its conclusion was open to it, having heard the manager’s evidence. The Tribunal’s reference to union membership or activity not being at the heart of the decision did not show that it had applied a principal-reason test; its Reasons, read as a whole, showed that it understood that the protected ground need only be a significant part of the mental processes.
5. The Tribunal’s alternative reasoning under section 137(4) was unnecessary to the result. The provision concerns an arrangement or practice under which employment is offered only to persons put forward or approved by a trade union. Recruiting three union nominees in response to a particular request would not itself establish such an arrangement or practice. If that issue had been decisive, the appeal would have been allowed.
6. The fact that a mental list was not written down did not arise for decision on the appeal and remained open for argument in another case.

• Employment Tribunal: dismissed the claims under section 137 of the Trade Union and Labour Relations (Consolidation) Act 1992 and regulation 5 of the Employment Relations Act 1999 (Blacklists) Regulations 2010.
• Employment Appeal Tribunal: dismissed the appeal, upholding the Tribunal’s findings on motivation.