The Employment Appeal Tribunal has held that an employer acted unlawfully when a job applicant was refused a job due to past trade union activities.
The applicant, in this case, who was an airline pilot, had previously been involved with a trade union of which he was a member. He had spoken to the airline’s Executive Chairman, to explain that there was a groundswell of opinion that pilots should be represented by the union. The Chairman made clear he did not want the union involved, and the following day was aggressive and hostile in a telephone conversation with him.
The following year the union was granted statutory recognition by the Central Arbitration Committee, entitling it to conduct collective bargaining on behalf of the pilots. The union subsequently brought High Court proceedings claiming that the airline had not complied with the specified method for collective bargaining. The pilot’s name was mentioned in some of the documents relating to these High Court proceedings.
The pilot left to work for another airline but subsequently applied to return to the airline and passed all stages in the selection exercise, but his application was rejected when it reached the HR director. He later applied for a second time and having not heard back, he emailed the Chairman. The Chairman did not reply to the email but emailed the Director of Flight Operations, in which he said of the pilot: “He told me that he was a shop steward at his previous company before us as well – so I don’t know why this leopard will change his spots”.
After receiving confirmation that his application had been unsuccessful, the pilot brought a tribunal claim arguing that he was refused employment because of his trade union membership. He won his claim despite the airline claiming that he had been rejected for other reasons.
The airline appealed.
Trade union ‘membership’ should be interpreted broadly
Dismissing the appeal, the Employment Appeal Tribunal said that trade union ‘membership’ should be interpreted broadly. Membership for these purposes, it said, was not to be construed narrowly as meaning the mere fact of carrying of a union card. The law, it went on to say, was concerned with the status of the particular applicant. Practically, any objection to an applicant was likely to be to the way in which their membership was expressed, as this is how the prospective employer would be aware of the union membership (except in cases where the applicant was included on a blacklist, which is unlawful). The Employment Appeal Tribunal said that it would leave a gap in the statutory protection, contrary to the legislative intent, if a tribunal was unable to conclude that an objection to trade union activities that were incidental to membership was not an objection to membership itself. The tribunal was right, it said, to reject the suggestion that there is a clear divide between trade union membership and activities.
The Employment Appeal Tribunal said that the tribunal had been entitled to find that the airline refused to employ the pilot because of his earlier activities advocating for a greater role for the union in the workplace. It did not matter that he was no longer a member of the union at the date of refusal, since he had been a member at the time he carried out the relevant activities, advocating and promoting its role in collective bargaining.
It also said that whilst other members of staff may have had reasons for rejecting his application for employment that were not related to his union membership this was beside the point because the Chairman alone had made the decision to refuse employment.
Case reference: Jet2.com Limited v Denby