Jet2.com Ltd v Denby

For Trade Union and Labour Relations (Consolidation) Act 1992, section 137(1)(a), trade union membership is not confined to holding a membership card. It includes conduct that is an outward manifestation or ordinary incident of membership. A tribunal may therefore find that opposition to an applicant’s participation in union activities amounts to opposition to the applicant’s union membership, where the activities are sufficiently related to that membership.

The issue remains fact-sensitive. The complainant bears the burden of proving the reason for refusal. The tribunal must identify what caused the relevant decision-maker to act and give sufficient reasons for rejecting any positive alternative case advanced by the employer.

The claimant was an airline pilot who had previously worked for the respondent and had been involved with the British Airline Pilots’ Association. In 2009 he advocated a greater role for BALPA in representing pilots and negotiating their terms. He later left the respondent’s employment.

When he applied to return in 2014 and 2015, his applications were unsuccessful. The Leeds Employment Tribunal found that the relevant decision-maker had refused employment because of the claimant’s earlier BALPA-related activities, which were related to his trade union membership, and upheld the complaint under section 137(1)(a) of Trade Union and Labour Relations (Consolidation) Act 1992.

The respondent appealed on the construction of membership, the connection between the claimant’s activities and membership, the reason for refusal, and the adequacy of the tribunal’s reasons.

1. Appeal dismissed. The Employment Tribunal had been entitled to uphold the complaint under section 137(1)(a) of Trade Union and Labour Relations (Consolidation) Act 1992.
2. Section 137(1)(a) protects the status of an applicant as a union member or non-member. It is not limited to the bare fact of membership. A narrow construction would deprive the protection of substance because an employer will commonly learn of membership through its outward manifestations. The separation between membership and activities in sections 146 and 152 does not prevent overlap between those concepts.
3. Following Harrison v Kent County Council [1995] ICR 434, a tribunal may find that activities incidental to membership amount to evidence of membership. The approach in Discount Tobacco & Confectionery Ltd v Armitage (Note) [1995] ICR 431 remained relevant. The contrary observations of the majority in Wilson v Associated Newspapers Ltd and Palmer v Associated British Ports [1995] ICR 406 were obiter and concerned a different statutory provision. The construction was also reinforced by section 3 of the Human Rights Act 1998 and article 11 of the ECHR, as explained in Wilson and Ors v United Kingdom [2002] IRLR 568.
4. Whether particular conduct is incidental to union membership is fact-sensitive. Seeking representation by the union in the workplace may properly be treated as such an incident. The tribunal was entitled to find that the claimant’s advocacy of BALPA’s representational role related to his membership, even though he was not a BALPA member when he applied for re-employment.
5. The claimant bore the burden of proving the prohibited reason. The tribunal had to identify what caused the relevant decision-maker to act and address any positive alternative case advanced by the respondent. It did so adequately. Its decision, read as a whole, gave a reasoned explanation for rejecting the respondent’s alternative explanations and accepting that the relevant decision-maker’s sole reason was tainted by the claimant’s earlier union-related activities.
6. Where the tribunal finds that the relevant decision-maker acted for a prohibited reason, the existence of legitimate reasons that might have influenced other employees within the organisation does not avoid the finding. The tribunal was therefore not required to determine hypothetical alternative reasons.

• Employment Appeal Tribunal: Appeal from the Leeds Employment Tribunal dismissed.
• Leeds Employment Tribunal: Complaint under section 137(1)(a) of Trade Union and Labour Relations (Consolidation) Act 1992 upheld. Judgment sent out on 7 December 2016.