Our employment law distinguishes between dismissal of an employee on grounds related to trade union membership or activities, and selection for redundancy on grounds related to union membership or activities. Dismissal on either ground is automatically unfair.

 

Similar rules apply to dismissal on grounds of health and safety responsibilities. Interim relief is made specifically available, however, only where the reason for dismissal itself was that the employee was a union member, took part in trade union or heath and safety activities etc. The issue of principle in McConnell v Bombardier Aerospace Short Bros plc [2009] IRLR 201 is what happens when it is alleged that selections for redundancy are a sham to target trade union activists. This is the second time the case has been to the Northern Ireland Court of Appeal. On the first occasion, the Court of Appeal drew a distinction between a genuine redundancy dismissal, in which a tribunal does not have jurisdiction to hear a claim for interim relief based on an allegation of unfair selection on trade union grounds, and a fabricated redundancy designed to be used as a means to dismiss a trade union activist. It held that the tribunal had jurisdiction to hear an application for interim relief. The case then returned to the tribunal, who decided that there was a genuine redundancy situation and dismissed the claim. Dismissing the second appeal, the Northern Ireland Court of Appeal accepts that the mere fact of a genuine redundancy situation does not necessarily mean that the principal reason for dismissal is redundancy. However, it rejects a contention that there can be more than one "principal" reason for dismissal. Lord Justice Higgins points out that "principal" means "primary and there is only ever one primary reason, all others are subordinate." Lord Justice Girvan says it is for the claimant to show that they are likely to establish that the dismissals were not by way of redundancy in which they were unfairly selected, but rather that they were cases of dismissals not for redundancy but by reason of trade union activities. At an interim relief application, “if it was likely that the dismissals were for the principal reason of redundancy even if the applicants were likely to succeed in establishing that they had been unfairly selected then the appellants could not succeed in their claim for interim relief.