Bone v North Essex Partnership NHS Foundation Trust

Section 146 requires proof that the employer’s act or deliberate failure to act had the sole or main purpose of preventing or deterring trade union participation, or penalising it. A detrimental effect, or knowledge that conduct would have that effect, is insufficient without the required purpose. Purpose means the object the employer seeks to achieve, and may coexist with a motive to placate another union or maintain a quiet workplace. On appeal, an employment tribunal’s factual findings should be disturbed only for an error of law or perversity. The appellate court must not substitute its own view merely because it might have assessed an allegation differently.

Mr Edward Bone, a registered mental health nurse and active member of the Workers of England Union, brought claims against the NHS Trust alleging detriment for trade union activities under section 146. The employment tribunal upheld four complaints concerning the Trust’s failure to respond adequately to harassment and disparaging conduct by employees associated with Unison.

The Trust appealed. The Employment Appeal Tribunal first dismissed the claims on a jurisdictional ground concerning the union’s independence. This court reversed that decision in [2014] ICR 1053 and remitted the merits appeal. On remittal, the EAT allowed the Trust’s appeal for perversity and errors of law. The central issue was whether the employment tribunal had properly found that the Trust’s main purpose in failing to act was to weaken or marginalise the union’s influence.

Appeal allowed. The Court of Appeal set aside the EAT’s decision and restored the employment tribunal’s judgment.

1. Under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, the claimant must establish that the employer’s act or deliberate failure to act was undertaken for the sole or main purpose of preventing or deterring participation in an independent trade union’s activities, or penalising such participation. Detrimental effect alone is insufficient.
2. Applying Department of Transport v Gallacher [1994] ICR 967, purpose means the object which the employer desires or seeks to achieve. It is distinct from effect, intention and motive. A finding that the Trust’s main purpose was to eliminate or marginalise the union’s workplace influence was not inconsistent with findings that it also wished to placate Unison, achieve a quiet life, or knew that its inaction would deter Mr Bone.
3. On an appeal confined to questions of law, the proper focus is the employment tribunal’s reasoning, not the EAT’s, as explained in Vento v Chief Constable of West Yorkshire [2003] IRLR 102. The appellate court should first identify the tribunal’s factual findings and then consider whether they involve an error of law. Findings may be overturned for perversity only where there is no supporting evidence or the case against them is overwhelming: Yeboah v Crofton [2002] IRLR 634.
4. The EAT’s pleading objection failed. The Trust knew the case it had to meet, and the tribunal was entitled to draw an inference about the Trust’s purpose from the evidence and its findings as a whole.
5. The tribunal was entitled to find that the Trust should have taken disciplinary action against an employee before his departure and that the later investigation was ineffective. Its relatively brief reasoning on a minor allegation was not an error of law, particularly in a judgment dealing with numerous complaints.
6. The four findings under section 146 were therefore legally sustainable. The employment tribunal’s judgment was restored.

• Court of Appeal (Civil Division): in [2016] EWCA Civ 45, allowed Mr Bone’s appeal, set aside the EAT’s merits decision and restored the employment tribunal’s judgment.
• Court of Appeal (Civil Division): on 15 May 2014, reported at [2014] ICR 1053, held that the EAT’s jurisdictional ruling was wrong and remitted the Trust’s merits appeal to the EAT.
• Employment Appeal Tribunal: on 10 July 2014, allowed the Trust’s appeal on the merits and dismissed Mr Bone’s claims in their entirety.
• Employment Appeal Tribunal: on 30 September 2013, held that the certificate of independence did not operate retrospectively, allowed the Trust’s appeal on jurisdiction and dismissed the section 146 claims.
• Employment Tribunal: on 1 March 2012, rejected the racial discrimination claims and most section 146 allegations, but upheld four section 146 complaints.