Bone v North Essex Partnership NHS Foundation Trust

In a claim for detriment for trade-union activities under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, the union’s independence is a constituent element of the claim, not a condition of the employment tribunal’s jurisdiction. If independence is disputed and no certificate is in force, the issue must be referred to the Certification Officer. If it is not disputed, it falls out of the issues. A certificate conclusively evidences existing independence and ordinarily applies to a reasonable period before issue, though not indefinitely. A historic question may be referred under section 8(5). An appellate tribunal may refuse a new independence defence raised after a full merits hearing.

Mr Bone, an employee of the respondent NHS Trust, was an active member of the Workers of England Trade Union. He claimed that the Trust had subjected him to detriments contrary to section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992.

The employment tribunal rejected his racial discrimination claim but upheld his trade-union detriment claim. On the Trust’s appeal, the Employment Appeal Tribunal, under citation UKEAT035212GE, raised the union’s independence, obtained a later certificate of independence, held that it was not retrospective, and concluded that the employment tribunal lacked jurisdiction.

The Court of Appeal considered whether independence was jurisdictional and whether the certificate could establish independence during the period of the alleged detriments.

1. Appeal allowed. Jackson LJ, with Briggs LJ and Christopher Clarke LJ agreeing, held that the EAT had erred in treating the union’s independence as a jurisdictional condition. The matter was remitted to the EAT to determine the Trust’s substantive grounds of appeal.
2. Under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, independence is one constituent element of the claimant’s case. It does not determine whether the employment tribunal has jurisdiction under section 146(5), subject to the statutory dismissal exception. If the respondent does not dispute independence, that issue falls out of the litigation. If it is disputed and no certificate is in force, section 8(4) prevents the tribunal deciding it and section 8(5) requires a reference to the Certification Officer.
3. The absence of a certificate is not evidence that the union is not independent. A certificate is conclusive evidence while in force, but it does not create independence or alter the union’s character. The comparison with paragraph 6 of Schedule A1 confirmed that Parliament expressly identifies a certificate as a precondition where that is intended.
4. The certificate issued under section 6 was retrospective for a reasonable period before its date. Independence may develop gradually, as illustrated by Blue Circle Staff Association v Certification Officer [1977] 1 WLR 239 and Association of H.S.D (Hatfield) Employees v Certification Officer [1978] ICR 21. A tribunal should adopt a reasonable and common-sense approach, particularly where the relevant events are recent.
5. Where the events are more remote, section 8(5) must be construed broadly. The tribunal may refer the historic question whether the union was independent at the relevant time, and the Certification Officer must determine it on the available evidence. The Trust had not raised independence before the employment tribunal and should not have been permitted to introduce that new defence at the late appellate stage.

1. Court of Appeal (Civil Division). The appeal was allowed and the matter remitted to the EAT for determination of the Trust’s substantive appeal grounds: [2014] EWCA Civ 652.
2. Employment Appeal Tribunal. Under UKEAT035212GE, the EAT allowed the Trust’s appeal, holding that the certificate of independence did not establish independence during the relevant earlier period and that the employment tribunal lacked jurisdiction.
3. Employment Tribunal. The tribunal rejected the racial discrimination claim but upheld Mr Bone’s claim under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992.