Employment Trade Unions
Anne, Brain and Choudry are employed by the Manchester Institute of Further Education (MIFE). Brain and Anne have been employed for over 15 years as Senior Lecturers in Public Policy and Planning. Choudry was appointed fifteen months ago as a lecturer in Social Welfare Studies. All three are attending a meeting with Alexander Strikeman, the National Association of Further Education for Teachers (NAFET) local shop steward. The meeting was arranged by Alexander to discuss the management's failure to honour their pay agreement. During the course of the meeting, Anne mentioned that Doug Hardacre, her line manager, has taken back her staff car-parking permit and is threatening her with dismissal if Anne continues to meet with Alexander and discuss NAFET matters. Choudry informed Alexander that he is very keen to become a NAFET member, but is feeling afraid. Doug has warned him that if he becomes a NAFET member, then his position in MIFE may not be as secure as it could be, bearing in mind that redundancies are being considered. Whilst the meeting is in progress, Brain, feeling a little cold in the room, stands on a chair to close the window. The chair collapses and Brain falls on Anne and Choudry. All three of them are injured.
INTRODUCTION
All workers are now free to form and join trade unions. The point is highlighted in ILO Convention No 98 which states that ‘workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment’, more particularly in relation to acts ‘calculated to (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) Cause the dismissal or otherwise prejudice a worker by reason of union activities or because of participation in union activities outside working hours or, with the consent of the employer, within working hours’. Similarly, the Industrial Relations Act extended protection to workers against discrimination by employers on grounds of trade union membership and participation in union activities. Lastly, it is basically unlawful to refuse a person employment because he or she is a member of a union.
ANNE & CHOUDRY
Protection against dismissal for trade union membership and activities is secured through the unfair dismissal procedure. If Doug Hardarce acts on his threats and dismisses Anne for reasons of her associations with NAFET, then she will be justified if she decides to bring a claim for unfair dismissal in the Employment Tribunal. This is because statute expressly provides that reasons related to the employee’s membership or non-membership of an independent trade union, or participation in the activities of such a union at the appropriate time is automatically unfair. In such a case where an employer’s reason for dismissal amounts to unfair dismissal, the employer will not be given the opportunity to argue about the reasonableness of the reason for dismissal. This prevents the employer from seeking to justify the dismissal by showing that the needs of the business or some other instrumental consideration made it reasonable to dismiss the employee, nor is it a defence that the employer acted reasonably in the sense of following the right course of action which a reasonable employer, in the same circumstances, might have followed; nor is it enough for the dismissal to have complied with the requirements of procedural fairness.
This category of automatically unfair reasons therefore represent substantive rights of employers which may not, on the whole, be weighed in the balance against the managerial or business-related interests of the employer. In addition, no qualifying period is needed to assert these rights. There are several remedies that will become available to Anne if she is dismissed for the reason above. First, she may apply for interim relief pending the outcome of the tribunal hearing provided that the application is presented within seven days of the effective date of termination and is supported by a certificate signed by an official of the union authorized to act for this purpose.
If the tribunal finds that the employee’s claim is likely to succeed at the full hearing it may order his or her reinstatement or reengagement pending the determination or settlement of the complaint or, if the employer refuses this, order the continuation of the contract, thus continuing of the contract, thus contracting the other benefits of employment until that time. This provision reduces the need for the employee to seek other employment pending the tribunal hearing. In cases where employer’s fail to comply with an order to reinstate or re-engage an unfairly dismissed employee, an additional award which is limited to 26-52 weeks pay may be awarded.
As concerns the taking back of Anne’s staff car parking permit, she can contest this in an Employment Tribunal. S 146 TULCRA 1992 provides that where a trade union membership is subjected to any detriment attributable to such membership, for example where an employer prevents or deters membership of a trade union, whether by act or omission of his employer, the employee can complain to an Employment Tribunal on grounds of discrimination.
An application of subjection to a detriment short of dismissal must be presented to an employment tribunal within three months beginning with the date of the act or failure to which the complaint relates or, where that act or failure is part of a series of similar acts or failures. Where a complaint is upheld the tribunal makes a declaration to that effect and may also award such compensation as it considers ‘just and equitable in al the circumstances having regard to the infringement complained of and to any loss sustained by the complainant which is attributable to the act or failure which infringed her right, which may include non-pecuniary loss as in Anne’s situation with the parking permit.
Selection for redundancy, on grounds of union membership and activities (known as inadmissible reasons) are subject to some special provisions. Employers are prevented from inhibiting employee’s freedom to join the union of their choice. Although redundancy has been identified in the Employment Relations Act 1996 as a potentially fair reason for dismissal, it is unlawful where the choice is based on union membership. Redundancy as a fair reason for dismissal opens the gateway to a fair dismissal claim, it also grants the employee an entitlement to receive a statutory redundancy payment, if he or she is otherwise qualified to do so. Where an unfair dismissal claim is brought as I would advice Choudry to do in the event that he is made redundant, it will be for his employer to show redundancy as a ‘fair reason’. As in Anne’s case, Choudry will put forward similar arguments in terms of the unlawfulness in preventing union membership. In particular Choudry will have to highlight in his claim the warnings given to him by Doug Hardacre.
Choudry is entitled to join NAFET if he desires as he has a lawful right to do so. An employment Tribunal is bound to find a selection for redundancy unfair under TULCRA 1992, s 153 if it was based intentionally or otherwise on trade union membership or activities. This finding is mandatory and does not depend on any question of reasonableness under Employment Relations Act 1996, s 98(4). If that happens Choudry need only to show that the reason for dismissal was redundancy, that other similar employees were not dismissed and that the reason for selection of this employee reflected trade union membership or activities, whether the employer discriminated deliberately or not.
In principle the rules applying to other unfair dismissals also apply to compensation where dismissal was for redundancy but has been found unfair.
BRIAN
There is a prima facie case in negligence. Anne and Choudry will both be entitled to a monetary compensation from Brian if they can prove negligence. There is no doubt that Brian had a duty of care to make sure that when he climbed on the chair that no harm would be caused on those around him. However, the main issue here is causation and whether injury could have been foressen.
Brian’s act in itself is arguable as to whether it was irresponsible in the circumstances. Issues like the type of chair and the likelihood of Brian tripping will inevitably be assessed by the courts. If injury is held to have been a foreseeable consequence of Brian’s act, then the case against him will be strengthened.
The question of causation is a bit tricky, because the facts don’t make it clear whether the chair was already damaged or faulty. If it was then there is a question of whether the supplier of the chair that is the owner of the premises is partly to blame. This will then involve a claim in occupier’s liability whereby the owner of premises will be liable in negligence for failing to keep his premises reasonably safe for lawful occupant’s. Investigations will have to be made as to health and safety regulations in place relating to opening and shutting of windows, safety of fittings and chattels etcetera. Even if an owner of premises is held to owe a degree of a duty to ensure that his premises are safe, there is then the question of breach. At first glance, it seems that a breach of duty will be difficult to prove because it is not certain whether climbing on top of a chair is one of the purposes for which the chair is to be used.
In the event that the chair is found to be faulty then there will be issues of contributory negligence between the owner of the premises and Brian. Where they are both found to be negligent, then they will both be made to make contributions to the damages according to the extent of their contribution to liability.
In conclusion, it is very essential to establish the state of the chair to ascertain where fault lie and ascertain any contributory negligence. Where the chair
BIBLIOGRAPHY
- S. Deakin and G.S Morris, Labour Law; Third Edition Butterworths 2001
- J Holland LLB and S. Burnett; Employment Law, Legal Practice Course Guides, Oxford University Press 2002
- R. Upex, R. Benny, S. Hardy; Labour Law, Core Text Series Oxford University Press
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