Trade union member or individual?

The court of Appeal has given the go-ahead for an employment case involving action taken against a trade union official to go back to the industrial tribunal.

The court ruled in FW Farnsworth v McCoid that the action of food manufacturer Farnsworth against one of its employees, Frank McCoid, could be in breach of section 146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992.

The section says that an employee has the right not to have action short of dismissal taken against him "as an individual" by an employer whose intention is to prevent or deter him from taking part in union activities, or to penalise him for such activities.

Farnsworth made a formal complaint to McCoid's union, the Transport & General Workers Union (TGWU) because of alleged behaviour by McCoid – particularly a sexist remark he was said to have made about a female manager. Farnsworth then de-recognised him as a union representative, but took no action against him as an employee.

As a preliminary issue, the tribunal was asked to decide whether Farnsworth's action could be classed as action taken against him "as an individual". Farnsworth said it de-recognised him because he was not suited to hold union office. It claimed the victimisation provisions of the Act could not take effect if the action related only to the person's position as a union representative – the action had to be against the employee in his capacity as an employee.

However, Farnsworth's early moves to stifle the victimisation claim were dismissed by the tribunal and the decision was then upheld by the Employment Appeals Tribunal. It has now been backed by the Master of the Rolls Lord Woolf, sitting with Lords Justices Otton and Ward in the Court of Appeal.

Lord Woolf said the action against McCoid had not been against the union but against an employee who happened to be a union representative. In those circumstances it was action "against an individual".

He said that to be de-recognised as a shop steward could be extremely damaging and could be regarded as a serious reflection on his character. The purpose of the Act was to provide people like McCoid with a remedy to this.

The case is now going back to an industrial tribunal to be fully considered.

Barry Clarke of Pattinson & Brewer, who represented McCoid, says that both large and small companies should take note of the case.

"There is undoubtedly antipathy between management and certain union officials in some companies and I hope such companies will take note of this case," he says.

"We consider the action was taken by Farnsworth because it did not like Mr McCoid as a union official. The Court of Appeal has effectively said that employers are at risk if they choose to de-recognise certain officials in the hope of getting someone more compliant.

"There is increasing interest in trade union cases at present. With the advent of more widespread union participation in industrial relations, it is important for employers to take note of what they can and cannot do."