Employers' duty to protect employees from detriment on trade union grounds

Most employers will be aware that they are not to subject employees to detrimental treatment on the grounds of trade union activity or membership. The recent Court of Appeal decision in Bone v North Essex Partnership NHS Foundation Trust has clarified the boundaries of employers' obligations to positively protect employees from detriment caused by their fellow employees or even other union members.

The facts

In this case the employee was a member of both Unison (recognised by the employer) and the Workers of England Union (WEU). The Employment Tribunal (ET) found that the employee had been subjected to a campaign of harassment by colleagues, including Unison officers on account of his membership of the WEU. This included:

• In the 2010 General Election, Mr Bone stood as an English Democrat candidate. A colleague and Unison representative circulated an email suggesting that the WEU was linked with fascism and the British National Party. The Trust failed to deal with this under its disciplinary procedures and dignity at work policies.
• A colleague described Mr Bone as a bigot. A manager gave that employee informal advice that this was inappropriate. The tribunal found that the Trust should have taken more robust steps to protect Mr Bone.
• A colleague greeted Mr Bone with the words "Hello Adolf". That employee was not required to apologise. The tribunal found that the Trust dealt ineffectively with this matter.
• A Unison branch official sent an internal email to a colleague expressing concerns about the "creeping crypto fascism" of the WEU. The tribunal found that the Trust's reaction to this was "limp and ineffectual" and a consequence of management's "weak and lamentably ineffective conduct" in failing to protect Mr Bone.

The decision

For a claim to succeed, the purpose (or main purpose) of the employer's acts or omissions must have been to cause a detriment in relation to trade union activities. The tribunal found this test had been met with "a striking example of an employer failing to protect an employee from a campaign of harassment and bullying." The Court of Appeal supported the ET's decision. It read the ET's findings as that:

• The Trust's main purpose in not taking the action it should have done was to eliminate, or at least to marginalise, the influence of Mr Bone and the WEU.
• The Trust was well aware that this might be the consequence of its inaction.
• The Trust was motivated by the desire to placate Unison and, in doing so, to achieve a quiet life.

This is an important reminder of the extent of an employer's obligations to not only refrain from conduct which is detrimental on union grounds, but also to take steps to protect employees from the conduct of staff and other union officials. Employers should have suitable grievance and disciplinary processes in place to mitigate the risk of such situations arising and should take robust action where action such as that outlined above has occurred.