Guide

Trade union membership rights

Tribunal claims: unlawful refusal of employment or employment agency services on TU membership grounds

Individuals can make an industrial tribunal claim if they think they have been unlawfully refused employment or the services of an employment agency on trade union membership grounds - see trade union membership rights of job applicants - employers and trade union membership rights of job applicants - employment agencies.

An individual - the claimant - can bring a claim against either or both a prospective employer and an employment agency where the claim arises out of the same situation.

If a claimant brings a claim against only one of them, either the employer/employment agency or the claimant can ask the tribunal to join the other - ie either the employment agency or employer - as a party to the proceedings.

A tribunal will grant such a request if it is made before the hearing begins. However, the tribunal may refuse the request if it is not made until after the start of the hearing. This 'request for joinder' cannot be made after the tribunal has decided whether or not the claim was well founded.

If a claimant brings a claim against both an employer and an employment agency, or if joinder has been granted and the tribunal finds the claim to be well founded against both the employer and the agency, the tribunal can order any compensation it may award to be paid only by the employment agency, paid only by the employer or divided between the two.

Pressure exerted by a trade union or other person

If the prospective employer or employment agency claims that they were induced to act unlawfully by pressure exerted on them by a trade union or other person - eg by threatening or organising industrial action - they can ask the Industrial Tribunal to join the trade union or other person as a party to the proceedings.

The claimant can also ask that a trade union or other person be joined as a party to the proceedings if they believe that they induced the employer or employment agency by these means to act unlawfully.

A tribunal will grant such a request for joinder - made by either the prospective employer/employment agency or the claimant - if the request is made before the hearing begins. However, the tribunal may refuse the request if it is made after the start of the hearing.

A request for joinder cannot be made after the tribunal has decided whether or not the claim was well-founded.

Where a trade union or other person has been joined to the proceedings and the tribunal finds the claim to be well-founded, it will also consider whether pressure was exerted on the prospective employer or employment agency, as alleged.

If the tribunal finds that such pressure was exerted, it can order the trade union or other person to pay some or all of any compensation it may award.

Remedies for unlawful refusal of employment or the services of an employment agency

If a tribunal finds that an individual has been unlawfully refused employment or the services of an employment agency because of their membership or non-membership of a trade union, it will make a declaration to that effect.

The tribunal may also:

  • award the claimant compensation to be paid by the prospective employer and/or employment agency
  • recommend that the prospective employer or employment agency takes action to remedy the adverse effect of their unlawful refusal on the claimant, eg by recommending that the employer considers the claimant for a job vacancy

Compensation

The tribunal will assess and award compensation as it sees fit. It may include compensation for injury to feelings.

In cases where a claim is made and upheld against a party and they fail without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation, or make an award if it has not already done so.

The amount of compensation payable, including any additional compensation awarded for failure to comply with a recommendation, is subject to an upper limit.

See current tribunal and arbitration compensation limits.