Bone v North Essex Partnership NHS Foundation Trust
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE JACKSON
- LORD JUSTICE CHRISTOPHER CLARKE
Areas of Law
- Employment Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
Mr. Edward Bone brought a claim against the NHS Trust for detriment due to his union activities. The Employment Tribunal found in his favor, but the NHS Trust's appeal led to questioning the independence of his union, WEU. The Employment Appeal Tribunal supported this challenge, causing Mr. Bone to appeal to the Court of Appeal. The Court of Appeal held that the tribunal has jurisdiction over the claim, despite the union independence issue, and clarified that a certificate of independence is retrospective to a reasonable period before issuance.
Judgment
Lord Justice Jackson:
This judgment is in six parts, namely:
Part 1. Introduction (paragraphs 2 to 9) Part 2. The facts and the tribunal proceedings (paragraphs 10 to 26) Part 3. The appeal to the Court of Appeal (paragraphs 27 to 30) Part 4. The jurisdiction issue (paragraphs 31 to 57) Part 5. The retrospectivity issue (paragraphs 58 to 66) Part 6. Executive summary and conclusion (paragraphs 67 to 69)
Part 1. Introduction
The first issue in this appeal is whether, in a claim for detriment under section 146 (1) (b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act” or “the Act”), the independence of the relevant trade union must be established in order for the employment tribunal to have jurisdiction. The second issue is whether a certificate of independence issued under section 6 of the 1992 Act has retrospective effect and, if not, how the historic position can be established.
Mr Edward Bone was the claimant in proceedings before the employment tribunal and respondent before the Employment Appeal Tribunal (“EAT”). He is appellant before this court. I shall refer to him as “Mr Bone”.
The North Essex Partnership NHS Foundation Trust was respondent in the proceedings before the employment tribunal and appellant before the EAT. In this court it is once again the respondent. I shall refer to it as “the NHS Trust” or “the Trust”.
Section 5 of the 1992 Act provides:
“ Meaning of “independent trade union "
In this Act an “ independent trade union ” means a trade union which —
(a) is not under the domination or control of an employer or group of employers or of one or more employers’ associations, and
(b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control;
and references to “ independence ”, in relation to a trade union, shall be construed accordingly.”
Section 6 of the 1992 Act provides:
“ Application for certificate of independence
(1) A union whose name is entered on the list of trade unions may apply to the Certification Officer for a certificate that it is independent.
….
(3) If an application is made by a trade union whose name is not entered on the list of trade unions, the Certification Officer shall refuse a certificate of independence and shall enter that refusal on the record.
(4) In any other case, he shall not come to a decision on the applic