Trade union ‘independence’

Posted: 20th May 2014

RCJA mental health nurse’s hopes of compensation have been boosted by an important Court of Appeal decision which gave authoritative guidance on the correct approach to establishing whether a trade union is, or is, not ‘independent’.

The nurse’s membership of a trade union which was not recognised by his NHS Trust employer had been a source of mounting tension. He ultimately launched Employment Tribunal (ET) proceedings under Section 146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, claiming that he had been prevented or deterred from taking part in the activities of an independent trade union.

His claim was upheld by the ET. However, in upholding the NHS Trust’s challenge to that decision, the Employment Appeal Tribunal (EAT) subsequently ruled that the union of which the nurse was a member was not independent and that the ET had thus had had no jurisdiction to consider his complaints.

The union had not at the relevant time been certified as independent by a certification officer in accordance with the Act and, although the required certificate was subsequently obtained, the EAT found that it did not have retrospective effect.

In allowing the nurse’s appeal, the Court found that, although it was necessary to establish the union’s independence as a constituent element of his claim, it was not a matter which went to the jurisdiction of the ET. The NHS Trust had not disputed the union’s independence until the matter was raised of its own motion by the EAT, which had encouraged the employer to pursue that new line of defence.

Ruling that the absence of the certificate was not conclusive evidence that the union was not independent, the Court found that it would be ‘absurd’ to argue that it only became independent at the moment when the ink dried on the certificate. It was in any event obvious to all concerned that the union was independent in the sense that it was neither dependent upon nor under the control of the employer.

Observing that Parliament cannot have intended to erect such an ‘arbitrary barrier’ in the path of meritorious claims, the Court found that the certificate was retrospective in its effect for a reasonable period prior to its issue. In those circumstances, the case was remitted to the EAT for consideration of the NHS Trust’s substantive grounds of appeal.