UK: No Discrimination Where Employer Refused To Recruit Candidates Put Forward By Trade Union

It is unlawful to refuse to employ a person because they are a member (or not a member) of a trade union (Trade Union and Labour Relations (Consolidation) Act 1992, section 137). However, in Miller v Interserve Industrial Services Ltd, the EAT has confirmed that an employer did not contravene this provision when it refused to employ three candidates put forward by a UNITE official.

Interserve provides labour for shut-down projects at oil depots. It had a collective agreement with UNITE which stated that the company would try and place senior stewards onto projects and that, wherever possible, shop stewards should be selected from their workforce. In March 2010, the full-time UNITE official proposed three union members for work as scaffolders on a particular project, all of whom had a history of acting as shop stewards. The official made it clear that in his view the collective agreement gave the union the right to nominate its members for recruitment, and that the three scaffolders should be recruited on that basis. The Operations Manager of the company refused. Subsequently these three men submitted claims that they had not been recruited because of their trade union membership.

The employment tribunal initially found that the reason the claimants had not been engaged was because the Operations Manager resented being bullied by the union and did not wish to be dictated to about whom to employ. Their non-recruitment therefore did not relate to their trade union membership. The EAT agreed, commenting that the employees had simply been caught in the crossfire between the union official and the company.

In this case, the employer was able to persuade the tribunal that its refusal to recruit the shop stewards was not motivated by their union membership. However, recruitment decisions in all discrimination claims will be scrutinised carefully by tribunals, and will depend on an assessment of the evidence in each case.

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