North West Ambulance Service NHS Trust v Rice

Under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, it is insufficient that treatment is connected with, or because of, trade union activity. The employer must have acted for the sole or main purpose of preventing, deterring or penalising that activity.

Once a prima facie case requires an explanation, the tribunal must assess the employer’s stated reasons and determine, from evidence and permissible inferences, the factors operating on the minds of the decision-makers responsible for the impugned act. Acts and attitudes of others may provide background, but cannot displace that focus. Rejecting an employer’s explanation does not by itself establish the prohibited purpose.

The Claimant, a full-time trade union official employed by an NHS ambulance trust, retired and was re-employed as a Band 5 Paramedic rather than in a Band 6 role. He withdrew his original complaint about the refusal of re-employment at Band 6. He instead alleged that the grievance panel’s subsequent rejection of his grievance was a detriment imposed for the sole or main purpose of penalising his trade union activities.

The Manchester Employment Tribunal upheld the complaint under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992. The Trust appealed. The central issue was whether the Tribunal had lawfully found that the grievance decision-makers acted for the statutory prohibited purpose.

1. Appeal allowed. The Tribunal had applied the wrong statutory inquiry. Section 146(1)(b) required it to decide whether the grievance decision was taken for the sole or main purpose of penalising trade union activities. Findings that treatment was connected with, because of, or tainted by trade union activity or status did not meet that stricter test.

2. Following Serco Ltd v Dahou [2016] EWCA Civ 832, after a prima facie case has been made out, the employer must show the purpose of its act. The Tribunal had to assess the factors operating on the minds of Mr Forrest and Mr Blezzard, who made the grievance decision. Conduct by Mr Kitchin and Ms Ward could be relevant background, but the Tribunal did not explain how it established the purpose of the actual decision-makers.

3. The Tribunal had also failed adequately to engage with the Trust’s stated reasons: the continuing restructuring of the Band 6 role and the Claimant’s lack of current clinical practice required for the new role. Even a justified rejection of those reasons would not automatically establish the Claimant’s alleged reason. There was no evidential foundation for an inference that the grievance decision-makers’ sole or main purpose was trade union penalisation.

4. Two serious findings relied on by the Tribunal were procedurally unfair. There was no evidential basis, nor a fair opportunity for the Trust’s witnesses to answer, for findings that Mr Blezzard had agreed but failed to investigate comparator managers and that the Trust had bent rules for other managers. The Tribunal was, however, entitled to infer apparent hostility by Ms Ward from the meeting notes.

5. The cumulative errors, irrelevant considerations and unsupported findings rendered the conclusion perverse. The matter could not be determined by substitution. It was remitted to a freshly constituted Employment Tribunal, since the original decision was wholly flawed notwithstanding considerations of proportionality, time and Tribunal professionalism.

• Employment Appeal Tribunal: appeal allowed on grounds 1 to 4. The Employment Tribunal’s decision upholding the section 146 complaint was set aside and the matter remitted to a freshly constituted Tribunal.
• Manchester Employment Tribunal: upheld the Claimant’s complaint that rejection of his grievance was a detriment contrary to section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992.