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Southwark London Borough Council v. Whillier


EAT & Court of Appeal

Appeal by the council from a decision of the Employment Appeal Tribunal ('EAT') dismissing its appeal from a decision of the Employment Tribunal ('ET') that the council's conduct in offering the respondent ('W') a promotion but withholding a concomitant salary increase unless she gave up her trade union activities constituted an action short of dismissal contrary to s.146 Trade Union and Labour Relations (Consolidation) Act 1992. W was an employee of the council and branch secretary of Unison. In the latter capacity she was released for full-time trade union duties. She was offered promotion to a higher grade post, but on the basis that she would only be paid the higher rate of pay attaching to that post once she was able to take up the duties of the new post after giving up her trade union activities. W contended that that offer constituted an attempt to prevent or deter her from carrying on trade union activities, or to penalise her for doing so, contrary to s.146 of the Act. The council contended, as before both the ET and the EAT, that: (i) the failure to pay W at the higher rate was an "omission" and not an "action", and so fell outside the section; and (ii) even if the council's conduct amounted to an "action", it was not "action short of dismissal", because it formed part of a series of actions designed to benefit W rather than to cause detriment to her.
HELD: (1) The council's attempt to distinguish between actions and omissions was "far too simplistic". The finding of the ET that the offer of promotion without the concomitant salary increase was "action" by the council was one which was eminently open to it, and one which the EAT was entitled to uphold. (2) The ET held that the offer by the council was made in the terms that it was for the purpose of deterring W from conducting trade union activities. That was a finding of fact which it was entitled to make. The obvious inference was that, but for those activities, W would have been offered promotion with the full salary that went with it. That was "action" which was to the detriment of W.
Appeal dismissed.

For the Case Law Index Document relating to the previous decision in this case, see Southwark London Borough Council v Whillier (2001) ICR 142.

Peter Oldham instructed by and for the appellant. Michael Ford instructed by Unison for the respondent.
LTL 25/5/2001 : (2001) ICR 1016 : Times, June 29, 2001

Document No. AC0101423

[2001] ICR 1016 (CA); [2001] ICR 142 (EAT)

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