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Issue 25 (August 1998)
Code breakers beware
Men benefit from women's equality
Rights for union members Casual about employee status? Payment in lieu of notice: debt under contract or damages for breach of contract?
Deduction of wages for those working on a commission basis
Fairness at Work White Paper: family friendly policies
FW Farnsworth Limited v Mcoid (1998) IRLR 362
The existing law does not provide union members and officials with adequate protection against victimisation by employers. This is partly because of changes introduced by the Conservatives and partly because of interpretation by the courts.
The legal protection only applies where the employer has taken action short of dismissal against a union member or official as an individual. Labour proposes to amend the law so that it expressly covers deliberate omissions by employers as well as acts: for example failing to offer a benefit to a union member would be outlawed, as well as removing an existing benefit.
This deals with part of the outrageous decision of the House of Lords in Wilson and Palmer. But it still leaves other difficulties to be resolved.
A union member or official will only succeed if she or he can demonstrate that the action was directed against him or her as an individual. This difficulty was illustrated by the employer's arguments in the case of Mr McCoid, a TGWU shop steward.
The employers purported to 'derecognise' Mr McCoid and refuse to deal with him as a shop steward. The employers argued that the action taken against Mr McCoid was not taken against him as an individual, but against the union.
It was not action which affected Mr McCoid as an employee, but as an official of the union. They argued that an earlier case of Ridgeway v National Coal Board [1987] IRLR 80 meant that Mr McCoid's case must fail.
The Employment Appeal Tribunal rejected this argument and accepted that Mr McCoid was not merely a victim of a general attack on the union, but that the action was directed at him as an individual.
This is a welcome decision, but it is not the end of the case. The applicant must still show that the purpose of the action taken against him was to prevent or deter him from taking part in union activities or penalise him for doing so. This is a difficult test to satisfy, not least as the union official must demonstrate to the Tribunal the purpose of his employer's actions, not merely their effect.
The law as it stands is unnecessarily complex. It places undue obstacles in the path of union members and officials bringing claims. It provides weaker protection than the legislation covering non-union representatives elected to deal with consultation on redundancies or transfers.
Similar protection should be extended to trade unionists. They should also be protected against being subjected to any detriment for belonging to the union, taking part in its activities or making use of its services.
This is a point which Thompsons has made in its response to the Fairness at Work White Paper. The law must be made simpler and easier to use.