EAT : v. Denby

Section 137 of the Trade Union and Labour Relations Consolidation Act (TULRCA) 1992 makes it illegal for an employer to refuse someone a job because they are a trade union member. In Ltd v Denby the Employment Appeal Tribunal (EAT) held that the reference to “membership” could include “activities” relating to that membership. 

Basic facts : Mr Denby started working for as a pilot in 2005. In 2008 he was elected to sit on the company’s Flight Deck Crew Council and shortly afterwards became the chairman and pilot representative for the Leeds Bradford and Manchester airports. He became increasingly involved with BALPA but when he informed the company’s executive chairman, Mr Meeson, in 2009 that the pilots wanted to be represented by the union he was told in no uncertain terms that the company would do everything within its power to resist.

After leaving in 2011 to work for another airline, Mr Denby reapplied to the company in 2014 but despite passing all stages of the selection process, his application was rejected. He tried again the next year, but was once again unsuccessful.

Mr Denby brought a claim under section 137 of TULRCA that he had been refused employment because of his trade union membership. argued that the reason his application had failed was because prior to leaving the company in 2011, he had tried to unsettle other colleagues by talking about his increased remuneration package. This was considered to be unhelpful to the company’s attempts to retain its “valued pilots”.

Tribunal decision: The tribunal was not persuaded by the company’s explanation of why employment had been refused to Mr Denby. It also took a broad approach to the term “trade union membership” in section 137(1) of TULRCA that was consistent not only with the decision of the EAT in Harrison v Kent County Council, but also with the Human Rights Act 1998 and the European Convention on Human Rights.

The tribunal concluded that Mr Meeson refused to re-employ Mr Denby because he had taken an active role in promoting BALPA to represent the pilots for the purposes of collective bargaining. As such, he carried a “continuing animus” towards him because of his past advocacy, an activity that was related to his trade union membership.

EAT decision : The EAT rejected the company’s appeal against that decision, holding that the tribunal was correct to adopt a broad, purposive approach and that it was open to it to find an employer’s objection to an applicant’s participation in activities incidental to trade union membership is an objection to their status as a trade union member.

It was also irrelevant that Mr Denby was not a BALPA member when he applied to be re-employed in 2015 as the refusal related to his activities at a time when he was a member.

Comment: This is a very welcome judgement. The tribunal makes clear that constructing trade union membership narrowly would leave the protection afforded by the provision lacking any real substance. The EAT also emphasised that a narrow construction would run contrary to a trade union member’s rights pursuant to Article 11 that provides for Freedom of Association.

From Labour & European Law Review Weekly issue 552 10th January 2018 . Submitted by Tommy Campbell.

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