North Essex Partnership NHS Foundation Trust v. Bone

For a detriment claim under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, the employer must have acted or deliberately failed to act for the sole or main purpose of deterring union activities or penalising them. Foreseeable detrimental effects, or knowledge of such effects, do not establish that prohibited purpose.

The tribunal must identify and apply that statutory test separately to each alleged detriment. It cannot attribute the aims of another trade union to the employer, or infer an improper purpose without a firm basis in the pleaded case and evidence. Where the findings admit only one lawful conclusion, the EAT may allow the appeal and dismiss the claims without remittal.

The claimant, an NHS mental nurse and an active member of the Workers of England Trade Union, brought claims of detriment for trade union activities under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, together with race discrimination claims. The Employment Tribunal upheld four of 21 detriment complaints. It found that the Trust's failures to respond adequately to hostile conduct and communications associated with Unison had been for the main purpose of deterring the claimant's union activities.

An earlier EAT decision treated the union's independence as a jurisdictional issue. The Court of Appeal, in EWCA Civ 652, held that it was not jurisdictional and remitted the case for determination of the merits. The central issue was whether the Tribunal had erred in law or acted perversely in upholding the four section 146 complaints.

1. Appeal allowed. The Tribunal's four findings of liability under section 146(1)(b) could not stand. The claims were dismissed and were not remitted.

2. Section 146 requires proof that the employer's sole or main purpose was to prevent or deter participation in an independent trade union, or to penalise that participation. Purpose is the object the employer sought to achieve. A foreseeable effect, or mere knowledge that an effect may occur, is insufficient.

3. In the first and third successful complaints, the Tribunal found that the Trust had failed to intervene because it feared a backlash from Unison and wished to remain neutral. Those findings did not establish a purpose to deter the claimant's activities. The Tribunal had impermissibly treated the foreseeable effect of inaction as proof of the required purpose, and had attributed Unison's aim of ostracising the claimant to the Trust.

4. In the second complaint, there was no finding that the relevant manager's sole or main purpose was improper. Her unchallenged evidence was that the claimant's trade union activity was irrelevant unless it affected his work. The Tribunal gave no credibility finding capable of displacing that evidence.

5. In the fourth complaint, the Tribunal's chronology could not support a finding that the Trust's earlier inaction was designed to cause a later offensive email. Its further inference that the Trust wished to eliminate the union's influence lacked a firm foundation in the pleaded case, evidence or questioning.

6. The EAT held that a specific application of the statute to each complaint was required, particularly because most of the claimant's complaints had failed. Since the established findings permitted only dismissal, there was no useful purpose in a further hearing before the Tribunal.

7. On costs, the EAT exercised its discretion under Rule 34 and ordered the Trust to pay £5,000 towards the claimant's costs. The Trust could earlier have recognised that the union was not under its influence and avoided unnecessary proceedings on that issue.

• Employment Appeal Tribunal: This differently constituted EAT allowed the Trust's merits appeal, dismissed the four successful section 146 claims, and made a partial costs award to the claimant.
• Court of Appeal: In EWCA Civ 652, the court held that the trade union's independence was not a jurisdictional issue and remitted the case to the EAT to determine the merits.
• Employment Appeal Tribunal: At an earlier hearing, the EAT treated the union-independence issue as jurisdictional and referred it to the Certification Officer.
• Employment Tribunal, Bury St Edmunds: The Tribunal upheld four trade-union detriment complaints under section 146, dismissed the race discrimination claims, and dismissed the claimant's other detriment complaints.