North Essex Partnership NHS Foundation Trust v Bone

Where proceedings under section 146 require a finding that a trade union was independent, and no certificate of independence is in force and no refusal, withdrawal or cancellation has been recorded, section 8(4) of the Trade Union and Labour Relations (Consolidation) Act 1992 prevents the tribunal or court from deciding that question. The proceedings must instead be stayed pending the Certification Officer’s determination. Listing a body as a trade union is evidence that it is a trade union, but independence is dealt with separately through the statutory certification process.

The Employment Tribunal upheld Mr Bone’s claims that the Trust had subjected him to four detriments in order to prevent or deter his participation in the activities of the Workers of England Union. The claims arose under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Trust appealed.

Although neither party had raised the point below or in the appeal documents, the Employment Appeal Tribunal identified that no certificate determining the union’s independence was in force, and no refusal had been recorded. The central issue became whether the Tribunal could determine the union’s independence, which was necessary to the section 146 protection.

1. Appeal stayed. The Employment Appeal Tribunal held that section 8(4) of the Trade Union and Labour Relations (Consolidation) Act 1992 applied. The Employment Tribunal’s findings under section 146 depended on the union being independent, but that issue had not been addressed and no certificate of independence, refusal, withdrawal or cancellation existed.

2. Section 8(4) prohibited both the Employment Tribunal and the Appeal Tribunal from deciding the independence question in those circumstances. The decision was for the Certification Officer. The statutory consequence was mandatory: the proceedings had to be stayed until a certificate was issued or refused.

3. The fact that the Workers of England Union was listed by the Certification Officer was evidence that it was a trade union under section 2(4). It did not resolve the separate question whether it was an independent trade union. Independence required the statutory certification process described in sections 5 and 8.

4. The Tribunal stayed the appeal for three months to allow Mr Bone to apply for certification and for the parties to report back. A judicial reference under section 8(5) was available but was not sought. The Tribunal left open issues concerning the temporal effect of any certificate and the parties’ possible consensual disposal of the appeal if certification were refused.

• Employment Appeal Tribunal: appeal stayed under section 8(4) of the Trade Union and Labour Relations (Consolidation) Act 1992 pending certification or refusal of the union’s independence.

• Employment Tribunal, Bury St Edmunds: upheld four claims that the claimant had been subjected to detriment contrary to section 146; reasons were sent on 1 March 2012. The claimant’s race discrimination claims were dismissed and were not appealed.