17 December 2012

Employer versus trade union

In many industries the battle of wills between employers and trade union officials can become difficult to maintain. A question which frequently arises for employers is whether they can refuse to be dictated to about whom to employ without breaking trade union discrimination laws.

The EAT recently dealt with this issue in the case of Miller v Interserve Industrial Services Ltd.

Background
Interserve Industrial Services Ltd provided labour for "shut-down" projects at oil depots. It was a highly unionised business. A full-time trade union official from UNITE, Mr Card, attempted to pressurise the recruiting manager Mr Jenkins, to employ three trade union members on two projects to act as work stewards ('the Claimants'). Mr Card relied upon a collective agreement between the company and the union, to argue that he was rightfully allowed to dictate who the company should employ for the vacancies on the projects.

Mr Card's approach was seen by Mr Jenkins as combative and he felt bullied. His desire to retain the company's right to employ the best people for the job resulted in him declining to recruit the Claimants concerned.

The Claimants raised complaints in the Employment Tribunal (ET) for being discriminated against because of their trade union membership. They argued that Mr Jenkins had blacklisted them from the opportunity to work with the company and the blacklisting was on the basis of their trade union membership.

The ET decision
The ET held that the reason why the Claimants were not recruited was because Mr Jenkins felt bullied by the union and he did not wish to be told who to employ. That was the only motivation and therefore the company did not breach the trade union discrimination laws.

The EAT decision
The EAT agreed with the ET decision. They concluded that the Claimants were simply caught between the company's management and the union official. Their non-recruitment did not relate to their trade union membership. 

However, the EAT said; the outcome of this kind of case will depend entirely on the assessment of the evidence in each particular case. The EAT would expect the employer's explanation to be scrutinised narrowly, on this occasion the employer passed the test.

Conclusion
This case illustrates that providing employers keep a clear record of the reason(s) for not employing an individual suggested by a trade union they are unlikely to be seen as breaching trade union discrimination legislation.