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Union membership: rights of members and non-members

URN No: 06/558

Contents

• Introduction
  
• Access to employment
• Refusal on grounds of trade union membership or non-membership
• Making a complaint
  
• Rights during employment
• Non-membership of a trade union
• Trade union membership and activities and related matters
• Right not to be excluded or expelled from a trade union
• Payment of union subscriptions through the check off
• Making a complaint
  
  For the following section in part 2 - please go to
  Union membership: rights of members and non-members - part 2
• Unfair Dismissal 
• Protection for businesses
• Union labour only and union recognition requirements in contracts
• Industrial action to promote closed shop practices or against non-union firms
  
• Appendix 1
  What is an independent trade union?
• Appendix 2
  Dismissal
• Appendix 3
  People who cannot complain of unfair dismissal or unlawful refusal if rights in the Access to employment and Rights during employment parts of this document are infringed
• Appendix 4
  Obtaining an order of interim relief 
  
  

INTRODUCTION

Employment law gives employees and other categories of worker certain basic protections against being penalised because they are, or are not, members of a trade union or for other reasons relating to union membership such as taking part in union activities at an appropriate time.

Closed shop practices or arrangements cannot be enforced against employees or prospective employees.

Individuals also have the right not to be excluded or expelled from a trade union. Union members whose subscriptions are paid by direct deduction from their pay (through the check off) have particular legal protection applying to these check off arrangements.

This document describes these protections and what an individual can do if his rights are infringed. It also describes a series of related provisions which prohibit requirements about union membership or union recognition from being included in commercial contracts, and which remove immunity from certain industrial action taken against non-union businesses.

In the parts of the document describing the following:

• the right not to be refused employment on grounds of trade union membership or non-membership;
• the right not to belong to a trade union;
• the right to belong to a trade union;
• the right  to make use of  trade union services;
• the right not to be offered certain inducements to disapply collective agreements;
• the right not to be excluded or expelled from a trade union;
• industrial action to promote closed shop practices or against non-union firms;
  

the term "trade union" has each of the following meanings:

• any trade union;
• a particular trade union;
• one of a number of particular trade unions;
• any branch or section of a trade union;
• a particular branch or section of a trade union; and
• one of a number of particular branches or sections of a trade union.

This means, for example, that the right not to be dismissed for not belonging to a trade union includes the right not to be dismissed for not belonging to a particular branch or section of a trade union.

It will be helpful to read this document with the employment legislation document Unfairly dismissed? and Individual rights of employees. A guide for employers and employees.

This document provides general guidance only.  Authoritative interpretations of the law can only be given by the courts.

For simplicity, the masculine pronoun is used throughout. The contents, however, apply equally to men and women.

Throughout this booklet, the terms “employees” and “other workers” are used, because some rights apply to all “employees” whilst other rights apply to the broader group of  “workers”.  The term “employees” refers to persons who have entered into, or work under, a contract of employment.  The term “workers” refers to persons who are either “employees” or who work under any other contract whereby they undertake to do or perform personally any work or services for another party to the contract who is not a professional client of theirs.  “Workers” therefore usually include agency workers who are not otherwise classified as employees, but exclude most self-employed people.   

ACCESS TO EMPLOYMENT

Refusal on grounds of trade union membership or non-membership

No individual is obliged to accept a requirement to join a trade union or to remain a member of a trade union, or to cease to be or not become a member, in order to obtain employment. All individuals have the following rights:

• not to be refused employment or any of the services of an employment agency because they are not members of a trade union, or will not agree to become or remain members;
• not to be refused employment or any of the services of an employment agency because they are members of a trade union, or will not agree to cease being members;
• not to be refused employment because they will not agree to make a payment (for example to a union or charity) in lieu of union membership or to allow a prospective employer to deduct a sum of money from their wages or salary to make such a payment.

It is unlawful for an employer to refuse employment, or for an employment agency to refuse its services, in contravention of any of these rights.

What types of employment are covered?

Employment referred to in the Access to employment part of this document means employment under a contract of service or apprenticeship. It does not include self-employment under a contract for services. However, self-employed people are protected against the union membership requirements described in the Protection for businesses part of this document.

Refusal of employment

What is meant by refusal of employment?
A person will be regarded as having been refused the employment he is seeking if the prospective employer or an agent acting on the employer's behalf:

• refuses or deliberately omits to deal with his application or enquiry; or
• causes him to withdraw or stop pursuing his application or enquiry (for example by making threats or discouraging remarks); or
• refuses or deliberately omits to offer him employment of the kind he is seeking; or
• makes him an offer of employment of the kind he is seeking but on terms (for example, the rate of pay) which no reasonable employer who wished to fill the vacancy would offer, and which is not accepted; or
• makes him an offer of employment of the kind he is seeking but withdraws it or causes him not to accept it (for example by making threats or discouraging remarks).
  

Where a person is offered employment subject to any of the requirements listed below and he does not accept the offer because he does not satisfy the requirement, or is unwilling to comply with it, he will be regarded as having been unlawfully refused employment for that reason. The requirements are that:

• he is, or should remain, a member of a trade union;
• he should take steps to become a member of a trade union;
• he is not, or should not become, a member of a trade union;
• he should take steps to cease to be a member of a trade union;
• he should make payments or suffer deductions in lieu of union membership.
   

Job advertisements specifying union membership requirements
Where a job advertisement appears specifying any of the union membership or non-membership requirements listed above, a person who does not satisfy the requirements, or is unwilling to comply with them, and who applies for and is refused the job will be presumed to have been refused it unlawfully. “Advertisement” means every form of advertisement or notice, whether to the public or not. It could, for example, be an advertisement in a newspaper or periodical, or a notice posted in or outside a factory.

Recruitment through trade unions
Where there is an arrangement or practice under which an employer recruits only people who have been supplied (i.e. put forward or approved) by a trade union from amongst its membership, a person who is not a member of the trade union concerned and who is refused the employment because he has not been supplied by the union will be regarded as having been refused employment because he is not a union member.

Appointment or election to an office in a trade union
It is not unlawful for a trade union to refuse to consider non-members for appointment or election to a position as a paid official. If the union considers non-members for such a position, however, it is not permitted to require the successful candidate to join the union.

Refusal of the services of an employment agency

What is meant by an employment agency?

Employment agency means any person or organisation who provides services, whether for profit or not, for the purpose of finding employment for workers or supplying employers with workers. A trade union is not regarded as an employment agency if it provides services only to its own members to assist them in finding employment. However, if a trade union provides such services to non-members it will be regarded as an employment agency.

What is meant by refusal of the services of an employment agency?
A person who seeks to make use of a service of an employment agency will be regarded as having been refused that service if the agency:

• refuses or deliberately omits to make the service available to him; or
• causes him not to make use of the service, or to stop making use of it (for example by making threats or discouraging remarks); or
• does not provide the service to him on the same terms as it provides the service to other people.
   

Where a person is offered a service of an employment agency subject to any of the requirements listed below and he does not accept the offer because he does not satisfy the requirement, or is unwilling to comply with it, he will be regarded as having been unlawfully refused the service for that reason. The requirements are that:

• he is, or should remain, a member of a trade union;
• he should take steps to become a member of a trade union;
• he is not, or should not become, a member of a trade union;
• he should take steps to cease to be a member of a trade union.
   

Employment agency advertisements specifying trade union membership requirements
Where an advertisement appears in relation to the services of an employment agency specifying any of the union membership or non-membership requirements listed above, a person who does not satisfy the requirements, or is unwilling to comply with them, and who seeks to make use of and is refused the services will be presumed to have been refused them unlawfully. (“Advertisement” means every form of advertisement or notice, whether to the public or not. It could, for example, be a list of job vacancies supplied by an employment agency to people who have registered with the agency.)

Making a complaint

Individuals who think that their rights as described in the Access to employment part of this document have been infringed can complain to an employment tribunal that they have been unlawfully refused employment or a service or an employment agency.

Who can complain of unlawful refusal of employment?

Virtually all individuals can complain to an employment tribunal if they think that they have been unlawfully refused employment or a service of an employment agency because of their membership or non-membership of a trade union. Those who cannot complain include people who are seeking self-employed work only, or employment in the police or armed forces or as a share fisherman. More details are to be found in Appendix 3.

A complaint to an employment tribunal must be made by the person who has been refused employment or a service of an employment agency.

Making an application

An application to an employment tribunal may be made as soon as an individual has been refused employment or a service of an employment agency. The application should be received within three months of the date of the refusal or the date on which an offer of employment is withdrawn. In any case where an offer of employment is made but not accepted, the application should be received within three months of the date on which the offer was made.

Where the conduct of an employer or employment agency causes a person to withdraw or stop pursuing his job application or enquiry, or not to make use of an employment agency service, or to stop making use of it, the application should be received within three months of the date of that conduct.

In the following circumstances an application should be received within three months of the date of the end of the period in which it was reasonable to expect the employer or employment agency to act:

• where an employer deliberately omits to offer employment or to deal with an application or enquiry; or
• where an employment agency deliberately omits to make a service available.
   

Where an employment agency fails to provide a person with the same service, on the same terms, as is provided to other people, the application should be received within three months of the date or last date on which the inferior service was provided.

If an application is received after the end of the relevant three-month period, the tribunal will consider the complaint only if it thinks that it was not reasonably practicable for the individual to have complained earlier.

Anyone who wishes to complain to a tribunal may obtain an application form ET 1 (E/W) or ET 1 (Scot) which is included in the explanatory leaflet Making a claim  to an employment tribunal available from Jobcentre Plus offices, Citizens Advice Bureaux, from the DTI Publications Orderline on 0845 015 0010, or from the Employment Tribunals Service website.

Conciliation

When a complaint of unlawful refusal of employment or a service of an employment agency is made to a tribunal, a copy of the application form is sent to the Advisory, Conciliation and Arbitration Service (Acas). Acas conciliators will attempt to assist the parties to reach a voluntary settlement without the need for a tribunal hearing if the parties concerned ask them to do so or if they think that there is a reasonable chance of success. Conciliators can also become involved before a formal complaint has been made to a tribunal at the request of any of the parties concerned. However, it is important to remember that the time limit for applying to an employment tribunal is not extended just because conciliation discussions are taking place.

Tribunal hearing

If a settlement is not reached or the application is not withdrawn, the individual's complaint of unlawful refusal of employment or a service of an employment agency will normally be heard by an employment tribunal. The tribunal will then decide whether there has been an unlawful refusal.

JoinderComplaint against an employer and an employment agency. A person having a right of complaint against a prospective employer and against an employment agency arising out of the same situation may choose to present a complaint against either of them or against them both. If a complaint is brought against only one of them, either the party against whom the complaint is made or the complainant can ask the tribunal to join (1) the other as a party to the proceedings. Such a request will be granted by the tribunal if it is made before the hearing begins, but may be refused if it is not made until after the hearing has started. A request for joinder cannot be made after the tribunal has decided whether or not the complaint was well-founded.

If a complaint has been brought against both the employer and the employment agency or if joinder has been granted and the tribunal finds the complaint to be well-founded as against both the employer and the agency, it can order any compensation which it may award to be paid either by the employment agency or by the employer, or to be divided between them in such manner as the tribunal may consider just and equitable in the circumstances.

Pressure exerted by a trade union or other person Where the prospective employer or employment agency against whom a complaint is made claims that they were induced to act unlawfully by pressure which a trade union or other person exerted upon them by threatening or organising industrial action, they can request the employment tribunal to join the trade union or other person as a party to the proceedings. The person making the complaint can also request that a trade union or other person be joined as a party to the proceedings if he believes that they induced the employer or employment agency by these means to act unlawfully. Such a request, made either by the party against whom the complaint is made or by the complainant, will be granted by the tribunal if it is made before the hearing begins, but may be refused if it is not made until after the hearing has started. A request for joinder cannot be made after the tribunal has decided whether or not the complaint was well-founded.

Where a trade union or other person has been joined to the proceedings and the tribunal finds the complaint 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 a service of an employment agency

If a tribunal finds that an individual has been unlawfully refused employment or a service of an employment agency because of his membership or non-membership of a trade union, it will make a declaration to that effect and may:

• award the complainant compensation to be paid by the prospective employer or employment agency (but see Joinder); and/or
• recommend that the prospective employer or employment agency takes action to remedy the adverse effect of their unlawful refusal on the complainant. (A tribunal might, for example, recommend that an employer should consider the complainant for a job vacancy but it cannot order the employer to do so).

Compensation

The tribunal will assess and award compensation on the same basis as damages for breach of statutory duty, and this may include compensation for injury to feelings. In cases where a party against whom a complaint is upheld fails without reasonable justification to comply with a recommendation to take action, the tribunal may increase its award of compensation, or make such 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, will be subject to an upper limit. The limit is varied annually in line with the retail prices index. (For details of current limits on payments, see Limits on payments and awards - Guidance.

Appeals

Any party to the proceedings may appeal against the decision of an employment tribunal on a complaint of unreasonable refusal of employment or a service of an employment agency, on a point of law only, to the Employment Appeal Tribunal. Anyone who wishes to complain to a tribunal may obtain an application form ET 1 (E/W) or ET 1 (Scot) which is included in the explanatory leaflet Making a claim  to an employment tribunal available from Jobcentre Plus offices, Citizens Advice Bureaux, from the DTI Publications Orderline on 0845 015 0010, or from the Employment Tribunals Service website.

RIGHTS DURING EMPLOYMENT

Non-membership of a trade union

Right not to belong to a trade union

No person is obliged to join, or remain a member of, a trade union.

All employees have the right:

• not to be dismissed, or chosen for redundancy, for not belonging to a trade union or for refusing to join one;
• not to be dismissed, or chosen for redundancy, for failing to accept an offer made by their employer with the sole or main purpse of inducing them to be or become a trade union member.  
  
    In addition,

all employees and other workers have the right:

• not to be subjected to a detriment  by their employer for not being or refusing to become   a trade union member;  
• not to be made an offer by their employer where the sole or main purpose of the employer is to induce them to be, or to become, a trade union member; and
• not to be subjected to a detriment for failing to accept such an offer.
   

Right not to make payments in lieu of union membership

Employees have the right:

• not to be dismissed for refusing to make a payment (for example, to a union or a charity) in lieu of union membership or for objecting to their employer deducting a sum of money from their wages or salary to make such a payment; and
  
  employees and other workers have the right: 
  
• not to have other action taken by their employer to compel them to make such a payment. The deduction by their employer of a sum of money from their wages or salary counts as action to compel them to make such a payment.
  

Trade union membership, activities and related matters

Right to belong to a trade union

Some individuals  may wish to belong to a  trade union and they enjoy certain protections where they do so.

All employees have the right:-

• not to be dismissed, or selected for redundancy, for being a member of an independent trade union (2) or for proposing to become a member; and
• not to be dismissed, or selected for redundancy, for failing to accept an offer made by their employer with the sole or main purpose of inducing them not to be or become a trade union member.

In addition, all employees and other workers have the right:

• not to be subjected to a detriment by their employer to prevent or deter them from belonging to an independent trade union or from seeking to become a member, or to penalise them for so doing;
• not to be made an offer by their  employer where the sole or main purpose of the offer is to induce them not to be, or seek to become, a member; and
• not to be subjected to a detriment for failing to accept such an offer.
   

Right to take part in  trade union activities

Individuals have protection relating to their trade union activities.

All employees have the following rights relating to their trade union activities:

• not to be dismissed, or chosen for redundancy,  for taking part, or proposing to take part, in the activities of an independent trade union at an appropriate time;
• not to be dismissed, or chosen for redundancy, because they failed to accept an offer made by their employer with the sole or main purpose of inducing them not to take  part in the activities of an independent trade union at an appropriate time.

In addition, all employees and other workers have the right:

• not  to be subjected to a detriment by their employer to prevent or deter them from taking part in trade union activities at an appropriate time, or to penalise them for doing so;
• not to be made an offer by their employer where the sole or main purpose of the employer is to induce them not to take part in an independent trade union’s activities at an appropriate time; and 
• not to be subjected to a detriment for failing to accept such an offer.

What are union activities?
The kinds of union activity in which an employee may take part are not set out in law. However, union activities involving an employee acting on behalf of the union, for instance as a shop steward representing a union that is recognised for collective bargaining purposes, would be covered, as would activities connected with the election or appointment of union officials.

Right to make use of union services

All employees have the following rights relating to the use they make of their union’s services:

• not to be dismissed, or chosen for redundancy,  for making use, or proposing to make use, of the services of an independent trade union at an appropriate time; and
• not to be dismissed, or chosen for redundancy, because they failed to accept an offer made by their employer with the sole or main purpose of inducing them not to use the services of an independent  trade union at an appropriate time.

In addition, all employees and other workers have the right:

• not to be subjected to a detriment by their employer to prevent or deter them from using their union’s services at an appropriate time or  to penalise them for doing so;
• not to be made  an offer by their  employer where the  sole or main purpose is to induce them not to make use of an independent trade union’s services at an appropriate time; and
• not to be subjected to a detriment by their employer for failing to accept such an offer.

What are “trade union services” ?

These  are services made available to an employee or other worker by virtue of his membership of an independent trade union. They include the union agreeing to raising a matter on behalf of the employee or other worker by, say, writing to the employer about a grievance.    “Trade union services” do not include having a member’s terms and conditions determined by collective agreement.

What is an “the appropriate time” for the union member to take part  in union activities or to make use of his union’s services ?

This is time which is either:

• outside the member's working hours - this could cover activities which take place or services which are used when the person is on the employer's premises but not actually required to be working, for example, lunch breaks; or
• a time within the member’s  working hours at which the employer has agreed that the employee may take part in trade union activities or (as the case may be) use the trade union’s services.
   

Rights to reasonable time off for trade union duties and activities also exist where an employer recognises a union for collective bargaining (see Individual rights of employees: a guide for employers and employees and the Acas Code of Practice Time off for trade union duties and activities).

Rights regarding inducements to disapply collective agreements

Many, but not all, members of trade unions have their pay and other terms and conditions of employment set by collective agreement negotiated by their union and their employer.   There are rights for union members to ensure that the employer does not interfere between the union member and his union in certain matters related to collective bargaining.

An employee or other worker who is a member of an independent trade union seeking recognition by his employer for collective bargaining purposes has the right:

• not to have an offer made to him  by his employer in circumstances where the employer’s sole or main purpose in making the offer is to achieve the result that, if it and like offers to other workers are accepted, all or part of those workers’ terms and conditions will not be determined by collective agreement negotiated by or on behalf of the trade union. 

An employee or other worker who is a  member of an independent trade union which is recognised by his employer for collective bargaining purposes has the right:

• not to have an offer made to him by his employer in circumstances where the employer’s sole or main purpose is to achieve the result that, if it and like offers to other workers are accepted, all or any of those workers’ terms and conditions will no longer be determined by a collective agreement negotiated by or on behalf of the trade union.

In addition, an employee has the right:

• not to be dismissed, or chosen for redundancy, by his employer on the grounds that he has failed to accept any such offer; and

an employee or other worker has the right: 

• not to be subjected to a detriment for failing to accept any such offer.

Right not to be excluded or expelled from a trade union

Any individual who wishes to join or remain a member of a trade union has the right to do so. The union may only exclude or expel him from membership for one of a limited number of permitted reasons, which are set out in law.

These permitted reasons allow a union to exclude or expel someone because its rules restrict membership to those who are:

• employed in a specified trade, industry or profession;
• of a particular occupational description; or
• in possession of specified trade, industrial or professional qualifications or work experience.
  
  They also allow a union to exclude or expel someone because:
  
• he is not eligible for membership because of the particular geographical area in which the union operates;
  the union is a staff association and the individual is not employed by a relevant employer; or
• his conduct is unacceptable.
  

A union may specifically not exclude or expel someone for conduct which consists of:

• current or former membership of a trade union;
• current or former employment; or
• conduct for which disciplinary action taken by his union would be regarded as unjustifiable in law (3).

The law refers to these three categories of conduct as “excluded conduct”, and it is always unlawful for a union to exclude or expel an individual on the grounds of such conduct, even where such conduct was a minor reason among several reasons for the union’s decision to exclude or expel.

In addition, it may be unlawful for a union to expel or exclude an individual for a fourth category of conduct called “protected conduct”.   “Protected conduct” is defined as current or former membership of a political party.  However, the law makes clear that the political activities by a person do not constitute “protected conduct”.       

How is “protected conduct” treated by the law ?

It is unlawful for a union to exclude or expel a person wholly or mainly on the grounds of that person’s protected conduct i.e. his membership or former membership of a political party.  However, it is lawful to expel or exclude where protected conduct was a minor reason for the union’s decision and the other reason or reasons were lawful grounds for the union’s decision.  So, assuming no other factors are involved, it is lawful for a union to exclude or expel a person mainly because of his political activities even though his membership of a political party was a subsidiary reason. 

What are “political activities” ?
 
These are not specified in the law but they would include standing for election as a member of a political party, canvassing on behalf of a political party or leafleting on behalf of a political party. 

In some circumstances, an individual who is expelled from a union may have the right to make a complaint of unlawful expulsion and of unjustifiable discipline. In that case, he has the right to make two separate complaints but if one is declared to be well-founded he may not proceed with the other. In addition to the rights described here, individual union members may also be able to complain to the High Court under the common law if their trade union takes action against them which is contrary to the union's own rules or to natural justice. Natural justice covers, for example, the right to a fair hearing.

Payment of union subscriptions through the check off

Some trade union members pay their union subscriptions by deduction from their wages; the payment is passed directly to their union by their employer. These arrangements are known as the check off.

Where check off arrangements exist, the employer may lawfully make deductions only where the worker has given his written consent and has not subsequently withdrawn that consent.

More information about the law in this area, including the arrangements for extending existing consents, is provided in the employment legislation document The payment of union subscriptions through the check off.

What must a worker do to withdraw his consent to the check off? The worker must write to his employer notifying him that he no longer wishes to have check off deductions made. He must allow the employer reasonable time to stop the deductions.

Making a complaint

Individuals - whatever their age, length of service or hours of work - who think that any of their rights as set out in the Rights during employment part of this document have been infringed can complain to an employment tribunal.

If employees have been dismissed (including cases where they have been dismissed on grounds of  redundancy), then their complaint is one of unfair dismissal.

If employees or other workers consider that union subscriptions have been wrongly deducted from their wages through the check off, then their complaint is one of unlawful deduction of union subscriptions.

If employees or other workers consider that they have been subjected to a detriment by an act, or deliberate failure to act, by their employer for the unlawful reasons set out above then their complaint is one of detriment.

If employees or other workers consider that their employer has made an unlawful inducement relating to trade union membership, activities, services or collective bargaining, as described in this booklet, then their complaint is one of unlawful inducement.

If they consider that they have been unlawfully excluded or expelled from a trade union, then their complaint is one of unlawful exclusion or expulsion and is against the union.

Many of the tribunal procedures are the same whichever of these complaints the applicant brings. But some procedures vary depending on which complaint is brought. The remedies which the tribunal can provide if it upholds a complaint also vary, depending on the complaint made. The following paragraphs set out in turn the procedures and remedies for each of these complaints

FootnoteS:

1. In  Scotalnd, "sist".

2. Broadly, a union is independent so long as it is not under the control of an employer. More detailed guidance is in Appendix 1.

3. See Unjustifiable discipline by a trade union - Guidance.

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