Dismissal on Grounds of Trade Union Membership or Non-Membership (or for taking part in trade union activities)

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Key points
§  Add a note hereAs a rule, a dismissed employee cannot pursue a complaint of unfair dismissal unless he (or she) was under 'normal retiring age' and had been continuously employed for one or more years at the effective date of termination of his contract of employment. However, those qualifying conditions do not apply if an employee alleges that he was dismissed because of his trade union membership or activities or because of his refusal to join or remain a member of a particular trade union or of any trade union. Complaints under this heading must be presented within three months of the effective date of termination of the employee's contract of employment. A tribunal will not entertain a complaint presented 'out of time' unless satisfied that it was not reasonably practicable for the complainant to have acted sooner.
Add a note hereTrade union membership and activities
§  Add a note hereSection 152 of the Trade Union & Labour Relations (Consolidation) Act 1992 states that the dismissal of an employee will be regarded as inadmissible and unfair if the reason, or principal reason, for the dismissal was:
a.     Add a note herethat the employee had joined, or had declared his (or her) intention of joining, an independent trade union; or
b.    Add a note herethat the employee had taken part (or had declared his intention to take part) in the activities of an independent trade union, either outside his normal working hours or during his normal working hours when it is ordinarily permissible (that is to say, with the employer's tacit consent) for such activities to take place; or
c.     Add a note herethat the employee was not a member of any trade union, or had refused (or had clearly indicated his or her intention to refuse) to join a particular trade union or any trade union.
Add a note hereAn employee who has been dismissed (or believes that he (or she) has been dismissed) for one or other of reasons (a), (b) or (c) above, may present a complaint to an employment tribunal – regardless of his age or length of employment at the effective date of termination of his contract of employment.
Add a note hereDismissal and the closed shop
§  Add a note hereBefore 20 July 1988, an employer could justify his decision to dismiss a non-union employee because of the existence of an 'approved' closed shop agreement and the employee's refusal to be or remain a member of one or other of the unions party to that agreement. However, that 'justification' no longer exists. Closed shops no longer have any legal relevance. Nowadays, it is up to the employee to decide whether or not he (or she) wants to be a member of a trade union – closed shop or no closed shop. If any employee is dismissed for refusing to join a trade union or for tearing-up his union card, his dismissal will be held to have been unfair; in which event, a tribunal will order his employer to pay very heavy compensation indeed.
Add a note herePayments in lieu of union membership
§  Add a note hereIf an employee cannot lawfully be dismissed for refusing to be or remain a member of a trade union in any circumstances, it follows that he (or she) cannot be dismissed for refusing to make a contribution to a trade union or to some other body (such as a charity) in lieu of trade union membership. The dismissal of an employee for that secondary reason will be regarded in law as having been unfair – irrespective of the existence of any such express or implied requirement in the employee's contract of employment (ibid. section 152(3)).
Note 
Add a note hereWhile an employee might very well agree to make some form of voluntary payment to a charity, trade union, or whatever, in lieu of trade union dues, it is not open to his employer to insist that he does so, or to discipline, victimise or dismiss him for refusing to make any such payment.
Add a note hereInterim relief
§  Add a note hereAn employee who has complained to an employment tribunal that he (or she) has been unfairly dismissed because of his trade union membership or activities, or because of his non-membership of a trade union or of a particular trade union, may apply to the tribunal for so- called interim relief (briefly, a direction to his employer ordering his reinstatement or re-engagement, or the continuation of his contract of employment) pending the determination of his complaint at the subsequent full tribunal hearing (ibid. section 161(1)).
§  Add a note hereAn application for interim relief must be submitted within seven days of the effective date of termination of an employee's contract of employment, and, in a case where he (or she) has been dismissed (or alleges that he has been dismissed) because of his trade union membership or activities, must be accompanied by a certificate in writing signed by an authorised official of the independent trade union in question stating that there appear to be reasonable grounds for supposing that the employee had indeed been dismissed for one or other, or both, of those reasons (ibid. section 161(2)).
§  Add a note hereIf the employment tribunal agrees that there is the likelihood of a finding of unfair dismissal when the full tribunal hearing is convened, it will order the employer in question to reinstate or re-engage the employee until the date set for the hearing. If the employer is unwilling to do so, the tribunal will make an order for the continuation of the employee's contract of employment (ie, a direction to the employer to pay the employee his or her normal wages or salary until such time as the question of the fairness or otherwise of the dismissal is finally resolved). A failure to comply with the terms of a 'continuation order' will result in an award of compensation to the dismissed employee – separate from, and additional to, any subsequent award of compensation on a finding of unfair dismissal at the later hearing. If need be, either or both of those awards will be enforced by the courts (ibid. sections 164, 165 and 166).
Add a note hereCompensation for unfair dismissal
§  Add a note hereThe employment tribunals are empowered to impose swingeing penalties where an employee has been held to have been unfairly dismissed because of his (or her) non-membership of a trade union, or because of his trade union activities.

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