What duty does a trade union owe to its members in employment disputes?
The High Court has provided guidance on the duty of care owed by a trade union to its members when advising and acting in employment disputes.
The facts
Mr Langley had worked as a bin man for Birmingham City Council. He was suspended on full pay pending an investigation into alleged gross misconduct. He was a member of the GMB union, which represented him in the disciplinary proceedings. They agreed a strategy which was to make as much fuss as possible about his suspension, so that by keeping pressure on the council it would create a climate for a favourable agreed exit package, and to string out the disciplinary proceedings so that he was still employed on his 55th birthday, when he would be entitled to take his pension. The GMB representative considered that his actions were likely to be treated as gross misconduct, that any tribunal claim would be weak, and that the best that could be achieved was a termination package. Eventually, Mr Langley entered into a settlement agreement, on which he received legal advice, under which he left without disciplinary sanctions, was paid in lieu of notice, and received a settlement payment of a year’s salary.
The following year, Mr Langley had second thoughts about leaving the Council, and brought claims against the GMB plus the solicitor and firm who had advised him on the settlement agreement. He claimed that the advice he had received, leading to the settlement agreement, was negligent. He argued that he should have been advised to reject the settlement offer because he considered that he would have kept his employment following a disciplinary hearing or, if he had been dismissed, he would have been successful in a whistleblowing claim and been awarded considerably more than a year’s salary.
The High Court had to consider the standard of duty owed by a trade union when it takes on responsibility for representing and advising one of its members. Mr Langley argued that it was a “quasi-legal” duty. However, the High Court disagreed. It held that that the duty is to provide reasonable skill and care in the provision of practical industrial relations and employment advice. This includes having the reasonable knowledge and experience expected of a trade union in both individual and collective negotiations in representing members’ interests. Where the union is recognised by a particular employer, its experience in dealing with that employer will be particularly valuable. The union is required to have a general understanding of employment, HR and industrial relationship issues, to be reasonably well informed about employment law in general terms, to have a reasonable level of skill and expertise in persuasion and negotiation, and to be able to provide strategic and tactical advice on how to resolve a situation in the best interests of the member. The High Court did not consider that the GMB had breached this duty of care.
The High Court also rejected Mr Langley’s case that the GMB should have advised him to seek interim relief. This path would have been fraught with difficulty and highly likely to fail because his whistleblowing claim was weak.
What does this mean for employers?
This decision makes clear that the duty of care owed by a trade union falls short of what would be expected of a lawyer, but employers who are unionised can still expect their employees to be advised with reasonable skill and care.
Langley v GMB and others QB-2019-002862
Employer subjected trade union member to a detriment by giving an oral warning the facts
When the employer, University College London (“UCL”), decided to end allowing unmoderated emails being sent to all staff in the IT department the claimant, Mr Brown, a union member, created a new mailing list for union communications and refused to delete it. He was given a formal oral warning for refusal to follow a management instruction. He brought a successful tribunal claim alleging he had suffered a detriment on grounds related to union membership or activity under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the Act”). UCL appealed to the EAT which upheld the tribunal’s decision.
The EAT confirmed that the question of the employer’s motivation is a subjective question, to be judged simply by enquiring into what was in the mind of the employer at the time. The EAT agreed with the tribunal that UCL’s main motivation was to discipline Mr Brown for not taking down the list, rather than for being insubordinate as they tried to maintain. On the facts the EAT held that the tribunal was entitled to find that UCLs “sole or main purpose” in giving the claimant the formal oral warning for refusing to comply with the instruction to take down an mailing list was his trade union activity itself. As such, UCL were preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so within the meaning of section 146 of the Act. The question of whether the employee qualifies for protection is an objective question, to be decided by the tribunal. The ET made findings of fact on these questions which disclosed no error of law or other basis for a successful appeal.
What does this mean for employers?
This case confirms that assessing an employer’s motivation in detriment claims is a subjective test. The EAT noted that this is also the position in whistleblowing detriment claims too. This case shows how difficult it is in both types of claim to distinguish the manner of the actions taken or disclosure made from the actions or disclosure themselves.
