Discrimination against trade union reps

Case ref: 4.3/ August 2004

Summary of case

A PCS rep, Mr X, was given an information counselling meeting in the early part of 2003 as a result of him plagiarising another Branch's circular and putting it out by email to his members.

In February 2004 he sent out an email to members drawing a link between a newspaper article about MPs and Senior Civil Servants' salaries a pay dispute in his Department. The message accompanying the link said "in case you wondered where the money went …." 

He was interviewed under disciplinary procedures and was given a six months oral warning for minor misconduct.

Advice requested

Advice was sought in respect of a potential claim for constructive dismissal and/or victimisation/discrimination against a TU rep.

Key advice provided by Thompsons

The solicitor highlighted the general legal parameters within which any claim for victimisation would be tested. The relevant comments are as follows: 

"In order to succeed in a claim under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA) an employee must show that he has been victimised by his employer, with the purpose of, amongst other things, preventing or deterring him from taking part in trade union activities. In other words, the dominant purpose of the employer's actions has to be to prevent the individual from taking part in trade union activities." 

In advising that our member had a greater than 50% chance of succeeding in a claim under Section 146 of TULRA, the solicitor was mindful of the provision of the employing Department's Employee Relations Framework, both in terms of access accredited representatives had to email facilities and the description in the framework of "inappropriate emails". The relevant comments are worthy of note: 

"The Standards of Behaviour document at Appendix 3 states: "you do not need permission to take part in activities organised by your trade union. Elected trade union representatives may comment on Government policy when representing the legitimate interests of their members, but in doing so they must make it clear that they are expressing their views as a representative of the union and not as Civil Servants". 

"In coming to a view on this case, I have wavered in my views as to the prospects of success. I think it is not a clear cut case but on balance, I take the view that Mr X has a greater than 50% chance of succeeding in a claim under section 146 of TULRA, on the basis that:

  • The distribution of the article to members of the trade union that could be classed as trade union activities, i.e. keeping people informed in relation to issues concerning the pay dispute
  • The information would have been of general interest to union members
  • Paragraph 3.44 of the ER framework does not prevent the sending of "inappropriate" emails. It only outlaws "offensive, abusive, derogatory or illegal emails", or those that "encourage or publicise industrial action or political opposition to Government policy."

Taking into account the standards of behaviour document, I do not think that a reasonable employer could form the view that the link to the article amounted to "political opposition to Government policy."

Rather, the article contained fair comment about a low pay rise being made to lower paid civil servants, in contrast to a high pay rise being made to MPs and higher paid Civil Servants. 

Further, the suggestion that the timing of the email would encourage members to participate in the forthcoming industrial action appears to me to be fanciful and stretching the words used by Mr X in the covering email much too far. As Mr X states, the timing of the email was governed by the timing of the article." 

The solicitor also advised on the question of a potential constructive dismissal claim. The relevant comments here are as follows: 

"With regard to a constructive dismissal claim, again, I think this is finely balanced. At the end of the day, Mr X was only given an oral warning. The question is whether that could amount, in the circumstances of this case, to a repudiatory breach of contract. The unjustified imposition of a final written warning was held to amount to such a breach in the case of Stanley Cole (WainFleet) Ltd v Sheridan (2003) IRLR 52 EAT. A final written warning is an entirely different penalty however to an oral warning. Had Mr X approached the union for advice at the end of March, I would have been very unlikely, if asked to advise by the union, to have advised Mr X to resign at that stage. Having said that, the alleged breach of contract in this case arises from action which arguably amounts to unlawful discrimination. That would make it more likely that it would amount to a repudiatory breach. There remains the question of whether or not Mr X can persuade a tribunal that he resigned in response, given his other emotional difficulties at the time. On balance I would put the chances of a constructive dismissal claim succeeding at no higher than 50/50."

Legal Department comment

As indicated above the solicitor was of the view that the prospects of successfully pursuing claims for this case were finely balanced. The Legal Department are of the view that Bargaining Units should automatically consider seeking advice from solicitors where there are potential claims of discrimination on the grounds of trade union activity.

Cases also should be closely managed from the relevant Bargaining Unit or Regional Office and early referrals should be made to the Legal Department if it is felt that legal representation is appropriate. 

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