It is unusual for an employer to find itself on the losing end of an employment law claim simply by doing nothing. However, in the recent case of Bone v North Essex Partnership NHS Foundation Trust, this is exactly what happened.

Just occasionally an employer’s inaction can lead to legal liability. Where an employer fails to take steps to protect its employees from racial or sexual harassment at the hands of its customers for example, the employer may be liable for that harassment. In this case the liability related to Trade Union activities.

Under the Trade Union and Labour Relations Consolidation Act 1992, it is unlawful to subject an employee to a detriment, either by any act or deliberate failure to act, for the sole or main purpose of preventing or deterring that employee from joining a Trade Union or carrying out Union activities.

The claimant was a member of two Trade Unions, Unison and the Workers of England Union. His NHS Trust employer had a partnership agreement with Unison but had no links with the WOE. The claimant complained to his managers about harassment by Unison officials relating to his WOE membership, and it was accepted by the Trust that he had been called a bigot and “Adolf” and that emails had been sent describing the WOE as a fascist organisation. The Trust, however, took no disciplinary action against any of the perpetrators and did not put in place any arrangements to protect the claimant from this harassment.

The Trust claimed that this was a political spat between the two unions and all it was trying to do was to remain neutral. The Employment Tribunal and subsequently the Court of Appeal disagreed. It was held that the Trust’s failure to take any effectual action was far from neutrality. On the contrary, the evidence suggested that the Trust had wanted to marginalise the influence of the claimant and the WOE and keep on the right side of Unison for a quiet life and that it knew a failure to take appropriate action to protect the claimant would achieve those aims. The Trust had therefore subjected the claimant to a detriment for the main purpose of deterring him from carrying out Union activities.

This case involves an unusual set of circumstances; however, the decision makes it clear that an employer will be liable under TULCRA where it has an ulterior motive to prevent or deter someone from carrying out Trade Union activities, even if that ulterior motive is disguised as mere inaction.

Bone v North Essex Partnership NHS Foundation Trust [2016] EWCA Civ 45 1 February 2016