Sarah Fraser Butlin reviews the recent judgment of the Court of Appeal in the long-running litigation in Bone v North Essex Partnership NHS Foundation Trust.
Mr Bone was the leading light of the Workers of England Union (WEU) and brought claims of race discrimination, which were all dismissed, and of detriment under s146 TULRCA 1992. The claims that were upheld by the Tribunal concerned a failure by the NHS Trust to deal properly with bullying and harassment by other employees. The acts included emails suggesting that the WEU was linked with fascism, describing Mr Bone as a bigot and greeting him with the words “Hello Adolf”.
The first decision of the Court of Appeal,  EWCA Civ 652 handed down in May 2014, confirmed that the question of whether a trade union was independent was not a matter of jurisdiction. There was no requirement to have a certificate of independence in order for a union to be independent. A certificate is declaratory not normative.
Under s146 it is a requirement that the union is independent and if an employer wishes to challenge this then they must raise it. If there is a dispute then the case will be stayed while the Certification Officer (CO) determines the question. The Tribunal may not determine a question of independence (s8(4) TULRCA). The Court of Appeal confirmed that, on a strict reading of s6(5), TULRCA would only provide for the Certification Officer to determine whether the Union is independent, that is in the present tense. However, clearly there would then be a lacuna where the independence of a union must be considered historically in order for a claimant to bring a claim for s146 detriment over a longer period of time. Therefore, the Court of Appeal held that restricting s6(5) solely to the present would make a complete nonsense of s146. Consequently, s6(5) should be construed more broadly such that a question could be referred to the CO to consider whether a trade union was independent at the relevant time for the claim.
The result of this was that the original appeal before the EAT had then to be considered. The Employer had appealed on grounds of perversity and other errors of law. The EAT allowed the appeal and, refusing to remit the case, dismissed the claims in their entirety. The Court of Appeal handed down judgment on this aspect of the case on 1 February 2016, see  EWCA Civ 45.
Section 146 provides:
“(1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of—
(a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so.…”
The Court of Appeal emphasised that this requires that the employer’s action or inaction must not simply have had the effect of causing a detriment to the employee in his trade union activities, it must also have been the sole purpose or main purpose of the conduct.
The employer had sought to argue in the Tribunal that their purpose was to remain “neutral” as between Unison and WEU. In the Court of Appeal, they argued that the Tribunal had erred in upholding Mr Bone’s claims in light of other findings that supported that position and that there was no evidence to support the Tribunal’s findings that their main purpose in not taking action was to eliminate or at least marginalise the influence of Mr Bone and WEU and that they were well aware that this was the consequence of their inaction.
The Court of Appeal was quick to reject these arguments. They were simply not supported by the findings of the Tribunal who had been heavily critical of the employer’s “weak and lamentably ineffective” conduct and failures to deal properly with the actions of other employees. There was no inconsistency in this with the further finding that the employer was motivated by the desire to placate Unison and therefore achieve a quiet life.
The Court of Appeal judgment is a helpful reminder of the importance of the question of purpose. A parallel can be drawn from the discrimination field. Following the repeal of s40 Equality Act 2010, we have returned to the position in the conjoined cases of Pearce and MacDonald  ICR 937 which overturned Burton v De Vere Hotels  ICR 1 holding, per Lord Nicholls, that 'Where the Burton decision is, indeed, vulnerable is that it treats an employer's inadvertent failure to take such steps [i.e. to protect their employees from racial or sexual abuse] as discrimination, even though the failure had nothing to do with the sex or race of the employees.'
Thus, a simple failure to take steps to prevent harassment by a third party is insufficient for liability of an employer to arise. Rather, that failure must be because of a protected characteristic. As the EAT in Conteh v Parking Partners  ICR 341 held, an employer is only liable under the harassment provisions for the failure to protect an employer from third party harassment if “the complainant had wanted the employer to take such action; the employer's inaction helped to create an environment that was intimidating, hostile, degrading humiliating or offensive to the complainant; and the employer failed to take action on the grounds of race.” Although note that the position of public sector employers may well be different in light of EU law following Sheffield City Council v Norouzi  IRLR 897 (and its reliance on R (Equal Opportunities Commission) v Secretary of State for Trade and Industry) which might be relied on in cases of third-party harassment.
Thus in a similar way under s146 it is not enough for an employer to have failed to take action to prevent or protect employees from third party harassment, there needs to be more to it than that. Section 146 requires that the sole or main purpose of that failure is one of the specified matters.
So in this long running saga, there are two key reminders. Firstly, the importance of independence of the trade union as a gateway to the rights under s146 TULRCA. This is also found in many other trade union rights provisions and should not be overlooked at the earliest stage. Secondly, the importance of the purpose, not just the effect of conduct or inaction resulting in a detriment under s146.
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