The law makes it unlawful for an employer to discriminate against an individual on trade union grounds in three main areas: in recruitment (discrimination during recruitment ), during employment (discrimination during employment ) and in dismissal (dismissal on union grounds ).
The employment tribunals that hear claims of trade union discrimination are aware that there is unlikely to be any direct evidence that an employer has discriminated on trade union grounds. They may, therefore, take into account the surrounding circumstances, including any anti-union statements that managers may have made, in order to decide whether it is appropriate to infer that the employer acted on union grounds.
It is unlawful for an employer to refuse to employ a person because he or she is a union member. On the face of it, this does not protect an individual from being refused a job because of his or her past involvement in union activities. Nevertheless, it would be inadvisable for a company to turn down a job applicant because of his or her past activities. The company's real concern in these circumstances is likely to be that the individual might continue those activities in its employment, indicating that the company is in fact basing its recruitment decision on the individual's current union membership.
When advertising a job, it is important not to suggest that the post is not open to union members. If an advertisement indicates that not being a union member is a pre-condition for employment and a union member unsuccessfully applies for the job, the law views that person as having been refused the job on union grounds, regardless of the real reason for the decision.
It is unlawful for an employer to put an employee under any form of disadvantage in order to prevent or deter the employee from being a union member, or penalise him or her for union membership. It is also unlawful to prevent, deter or penalise an employee's participation in the activities of a union, provided the activities take place at an appropriate time. Removing an individual's accreditation as a shop steward can amount to penalising him or her for union membership. Companies that are considering 'derecognising' a shop steward should therefore contact their Association for advice.
This protection from discrimination covers only members of independent trade unions. A union is not independent if it is under the employer's control or vulnerable to interference by the employer, whether through financial or practical support or in some other way. A union can apply to the Certification Officer for a certificate confirming that it is independent.
It is automatically unfair to dismiss an employee, or to select an employee for redundancy, for enforcing his or her right not to be discriminated against on union grounds, or for alleging that the employer has discriminated in this way. This applies regardless of the employee's age or length of service.
If an employer dismisses an employee for being a union member or for taking part in union activities at an appropriate time, the dismissal is automatically unfair. It is also automatically unfair to select an employee for redundancy on union grounds. This rule applies regardless of the employee's age or length of service. It should be noted, however, that this protection from dismissal, like the protection from discrimination during employment, extends only to members of independent unions (discrimination during employment ).
If an employee alleges that he or she has been dismissed on union grounds, an employment tribunal may order the employer to re-employ the individual pending the hearing of his or her claim (remedies for unfair dismissal).
Collective bargaining
Although it is unlawful for an employer to deter a worker from being a union member or using union services, union membership and services do not carry the right to be covered by collective bargaining. So if an employer refuses to recognise, or derecognises, a union, that does not amount to deterring its employees from being members of that union or using its services.
An employer may, however, be required to recognise a union under the statutory recognition procedure, summarised elsewhere ( statutory procedure for recognition ). Once this procedure is in operation, it is unlawful for an employer to put an employee under a disadvantage, to dismiss the employee, or to select the employee for redundancy on the ground that the employee has supported or opposed recognition or derecognition of the union.
Further, and more generally, it is unlawful for an employer to offer any worker who is a member of an independent trade union that is recognised, or seeking to be recognised, by the employer, any inducement to give up or forego the right to be covered by collective bargaining.
The law does not expressly prohibit discriminating against an employee on the grounds of his or her past union activities, rather than his or her current membership and activities. However, if there is evidence that an employer's treatment of an employee was influenced by the fact that the employee had been involved in union activities in the past, that could indicate that the employer was in fact discriminating against the employee because of his or her current union membership or activities.
Some examples of the union activities that might be protected include recruiting to the union, organising its activities, obtaining advice from the union, attending formal or informal union meetings, and participating in ballots and elections.
An individual is protected from discrimination for taking part in union activities only if the activities took place at an 'appropriate time'. Any time when the employee is not required to be actually working is an appropriate time. For example, activities during rest breaks are covered. If the employer has agreed to union activities taking place at certain times within working hours, then those times also count.