I Methven and Others v Unite the Union: 2225841/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 2225841/2024
Between
I Methven and OthersClaimantUnite the UnionRespondent
Before
Tribunal Judge JackDate 25 July 2025
JUDGMENT
[1]The Respondent’s applications for strike out are all refused.[2]The Respondent’s applications for deposit orders are all refused, except that:a. Deposit orders are made against the first two Claimants in respect of the argument seeking to implement a motion of an ONC conference that the ONC join an independent trade union was an activity of the Respondent;b. Deposit orders are made against all three Claimants in respect of the argument that supporting a candidate in the Respondent’s election for General Secretary who was not successful was an activity of the Respondent.
REASONS
[1]The purpose of the hearing was to hear the respondent’s applications for strike out under rule 38 or deposit orders under rule 40. The details of those applications are set out below.[2]There was a bundle of 251 pages. Each party provided a skeleton argument, and Ms Stanley and Mr Nadeem made oral submissions. The Law Strike Out
The Law
[3]A Tribunal may strike out all or part of a claim on the grounds that it has no reasonable prospect of success: rule 38(1)(a).[4]If a tribunal considers that a complaint has no reasonable prospect of success, it must them decide whether to exercise its discretion to order strike-out: Hasan v Tesco Stores Ltd EAT 0098/16.[5]The Court of Appeal in Mechkarov v Citibank N.A [2016] ICR 1121 set out the approach to be taken in a strike out application in a discrimination case at paragraph 14: “(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant's case must ordinarily be taken at its highest; (4) if the Claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.”[6]The House of Lords has emphasised that “Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest”: Anyanwu v South Bank Students Union [2001] 1 W.L.R. 638, Lord Steyn, paragraph 14. That is not to say that strike out is never appropriate: “… I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to taken up by having to hear evidence in cases that are bound to fail”: Anyanwu, Lord Hope, paragraph 39. Deposit Orders[7]Where a Tribunal considers that any specific allegation or argument in a claim has little reasonable prospect of success, it may make an order requiring the claimant t o pay a deposit of no more than £1,000 as a condition of continuing to advance that allegation or argument: rule 40(1).[8]If the question of whether a claim has reasonable grounds of success turns on factual issues that are disputed, it is highly unlikely that a deposit order will be appropriate, just as it is highly unlikely that strike out will be appropriate: Amber v West Yorkshire Fire and Rescue Service, [2024] EAT 146, paragraph 26.[9]The test for ordering payment of a deposit order by a party is that the party has little reasonable prospect of success in relation to a specific allegation, argument or response, in contrast to the test for a strike out which requires a tribunal to be satisfied that there is no reasonable prospect of success. The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim or the defence: H v Ishmail 2017 ICR 468, EAT, at [12].[10]Once a tribunal concludes that a claim or allegation has little reasonable prospect of success, the making of a deposit order is a matter of discretion and does not follow automatically. It is a power to be exercised in accordance with the overriding objective, having regard to all of the circumstances of the particular case: H v Ishmail 2017 ICR 468, EAT, at [15]. Analysis and Conclusions The respondent as both employer and independent trade union[11]All three claimants complain that they were subjected to detriments by their employer i.e. Unite for the purposes of preventing and deterring them from taking part in the activities of an independent trade union i.e. Unite.[12]Ms Stanley submitted that it is not in principle possible for the independent trade union and the respondent employer to be the same entity for the purposes of a complaint under section 146 of the 1992 Act, as it is inconsistent with the language of the statute. She sought a strike out order or, in the alternative, a deposit order in respect of this complaint. The claimants submitted that s. 146 does not require the claimant’s employer to be distinct from the independent trade union.[13]Section 146(1) is as follows: (1) A worker has the right not to be subjected to any detriment as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the sole or main purpose of — (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, (b) 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, (ba) preventing or deterring him from making use of trade union services at an appropriate time, or penalising him for doing so, or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.[14]The section needs to be read in context. Section 1 defines “trade union”.[15]Section 5 defines “independent trade union” as follows: In this Act an “independent trade union” means a trade union which—(a) is not under the domination or control of an employer or group of employers or of one or more employers' associations, and(b) is not liable to interference by an employer or any such group or association (arising out of the provision of financial or material support or by any other means whatsoever) tending towards such control; and references to “independence”, in relation to a trade union, shall be construed accordingly.[16]There is no dispute between the parties that Unite is a trade union and that it is also an employer. There is no dispute that employees of a union can be members of the same union, or that the three claimants are both employees and members of Unite.[17]Ms Stanley did not argue that a trade union which is also an employer for that reason alone cannot meet the statutory definition of an “independent trade union”.[18]Were a union to prevent one of its own employees from seeking to become a member of itself, I see nothing in the language of s. 146 that would prevent s. 146(1)(a) from applying. Were a union to prevent someone who was its own employee and also a member of itself from making use of its own trade union services at an appropriate time, I see nothing in the language of s. 146 that would prevent s. 146(1)(ba) applying. Were a union to require its own employee to become a member of itself, I see nothing in the language of s. 146 that would prevent s. 146(1)(c) applying. The respondent asserts that it is not in principle possible for an independent trade union and an employer to be the same entity for the purposes of a complaint under section 146 of the 1992 Act, as it is inconsistent with the language of the statute, but did not identify features of the language of the statute which are said to give rise to the inconsistency. The respondent has not shown that there are any such features. I do not consider that the respondent has shown that the claimants have no or little reasonable prospect of success in establishing that the language of s.146(1)(b) can apply where an employee of a union who is also a member of that union is prevented from taking part in its activities as an an independent trade union at an appropriate time.[19]Ms Stanley further submitted that even if s. 146 can apply where the employer and independent trade union are the same entity, the activities relied on by the claimants cannot in principle be activities of the respondent in its capacity as an independent trade union.[20]The activities relied on are:a. Lodging collective grievances on behalf of members of Unite by the Officers National Committee (ONC), which the first claimant says is a specific bargaining unit which negotiates for and represents employees of Unite who are also members of the trade union Unite (List of Issues paragraph2.4.4.1.1 and 3.4.4.1.1; also see the first claimant’s Grounds of Claim, paragraphs 4 and 5). The first grievance was submitted on 20 February 2024 and is said to have concerned bullying, harassment and intimidation by lay reps (first claimant’s Grounds of Claim, paragraph 19). The second grievance was submitted on 9 April 2024 and is said to have followed management’s failure to deal with grievance and disciplinary matters (first claimant’s Grounds of Claim, at paragraph 23). This activity is relied on by the first and second claimant.b. Seeking to implement a motion from an ONC conference on 8 February 2024 for the ONC to join an independent trade union, which was subsequently identified as Community in April 2024 (List of Issues paragraph2.4.4.1.2 and 3.4.4.1.2). This activity is relied on by the first and second claimant.c. Supporting a candidate in the Unite election for General Secretary who was not successful (List of Issues paragraph 2.4.4.2, 3.4.4.2 and 4.4.4.1.1). This activity is relied on by all three claimants.[21]With respect to activity a, Ms Stanley submitted that lodging a grievance with Unite as employer cannot be an activity of Unite in its capacity as an independent trade union. The claimants submitted that this activity of the ONC, as a subcommittee/part of Unite which comprises members of Unite only, would be an activity of Unite as an independent trade union.[22]The 1992 Act does not define “activities”. But the activities of a trade union member are not necessarily “activities of an independent trade union”: Chant v Aquaboats Ltd [1978] ICR 643, EAT.[23]Taking the claimant’s case at its highest, the Officers National Committee (ONC) is a specific bargaining unit within Unite which negotiates for and represents employees of Unite who are also members of Unite. Lodging a grievance on behalf of members of an independent union with their employer is potentially an activity of an independent trade union. That is clear where the union and the employer are separate entities. I do not see why lodging a grievance cannot in principle be an activity of Unite in its capacity as an independent trade union if that grievance is lodged with Unite in its capacity as an employer. I do not consider that the claimants have no or little reasonable prospect of success in establishing that the activity of submitting grievances on behalf of employees of Unite who are also members of Unite is an activity of an independent trade union, namely of Unite.[24]With respect to activity b, the question is whether implementing a motion that (on the claimants’ case) a subcommittee/part of Unite, which represents employees of Unite who are also members of Unite, should leave Unite and join another trade union could be an activity of Unite itself in its capacity as an independent trade union. I accept Ms Stanley’s submission that it is difficult to see how the activity of implementing a motion that the ONC should leave Unite and join another trade union could be an activity of Unite, since it is contrary to the interests of Unite. My assessment is that the claimants have little reasonable prospect of success in establishing that implementing a motion that part of Unite should leave and join another union was an activity of an independent trade union, namely of Unite itself.[25]Is supporting a candidate in the Unite election for General Secretary an activity of Unite or of its members? Organising an election of a General Secretary of Unite could be an activity of an independent trade union i.e. Unite, but that is a different activity. The claimants submit that only members of Unite can vote in an election of the General Secretary. However that campaigning for a candidate in the election was an activity of trade union members does not itself show that it was an activity of the independent trade union: Chant v Aquaboats Ltd. Further, only members of a trade union can pay a membership fee, but that does not show that paying a membership fee to a union is an activity of the union rather than an activity of members. The claimants’ position commits them to saying that campaigning for candidates in the election was an activity of Unite. More than one candidate stood, but it is implausible that the Union supported more than one candidate in an election in which only one candidate could succeed. My assessment is that the claimants have little reasonable prospect of success in establishing that their supporting a candidate in the Unite election for General Secretary who was not successful was an activity of the independent trade union, i.e. of Unite itself.[26]With respect to activities b and c although the parties disagree as to whether or not they are activities of an independent trade union i.e. Unite, the claimants did not submit that resolution of that issue will depend on significant disputed matters of fact.[27]Taking the claimant’s case at its highest, and for the reasons just given, the claimants have little reasonable prospect of success in establishing that activities b and c were activities of an independent trade union i.e. Unite.[28]The making of a deposit order is a matter of discretion. However the claimants are legally represented and have had the opportunity to present their best arguments in response to the respondent’s applications. The purpose of a deposit order is to make a claimant stop and think before requiring a respondent to spend time and money addressing arguments in a claim that have little reasonable prospect of success. I see no reason why I should not make deposit orders in respect of the arguments that activities b and c are activities of Unite. First two claimants’ harassment complaints - harassment[29]The first two claimants complain of harassment related to sex. In each case they complain of unwanted conduct, and in particular the email of Andy Green on 15 May 2024 which is said to allege sexism and misogyny, and that this unwanted conduct related to sex.[30]The first two claimants also complain of harassment related to belief. In each case they complain of unwanted conduct, and in particular the email of Andy Green on 15 May 2024 which is said to allege sexism and misogyny, and that this unwanted conduct related to their protected belief in moderate left-wing socialism.[31]The passage in the email to which the first two claimant’s object read as follows: “It also seems very clear to me that we must continue to respect that same role to our first woman GS and indeed Sarah Carpenter as EHO, as we afforded to the men before them in these same roles.”[32]The respondent submits that this language cannot constitute harassment within the meaning of s. 26(1) of the Equality Act 2010. A person(a) (A) harasses another(b) (B) if A engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of either violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. The claimants submit that complaints of harassment inherently turn on factual evidence, in which the perception of the first two claimants and the other circumstances of the case must be taken into account (s. 24(4) of the Equality Act 2010).[33]My own view is that the question of whether these words can constitute harassment will be fact sensitive and will depend on the wider context. The words could potentially bear the meaning that the claimants did not afford the same respect to the union’s first female General Secretary that they had afforded to earlier male occupants of that role. The perception of the first two claimants will be relevant to whether the conduct complained of had the effect of violating their dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment. The other circumstances of the case will also be relevant to whether or not the conduct complained of had that effect. I do not consider that that the first two claimants have no or little reasonable prospect of success in establishing that this email constituted harassment. Moderate left-wing socialism as a protected belief[34]All three claimants complain of harassment related to belief. All three rely on the belief of moderate left-wing socialism.[35]Both parties referred to the guidance in Grainger plc and ors v Nicholson 2010 ICR 360, EAT on the ambit of ‘philosophical belief’.[36]The respondent submitted that the claimants have little reasonable prospect of showing that moderate left wing socialism is a protected belief within the meaning of s. 10 of the Equality Act 2010.[37]However, as the claimants submit, political belief i.e. a belief in a political philosophy or doctrine can qualify as a protected philosophical belief: Grainger, at [28]. The claimants also relied on General Municipal and Boilermakers Union v Henderson 2015 IRLR 451, EAT, at [62]. As the claimants noted, in the specific factual context of that case, the employment tribunal held that the claimant’s “left-wing democratic socialist beliefs” were protected beliefs. An assessment of whether the Grainger criteria are met in the instant case would require an assessment of the evidence on the point. On the basis of the material before me at this stage, I cannot conclude that the claimants have little reasonable prospect of showing that “moderate left-wing socialism” is a protected belief within the meaning of s. 10 of the Equality Act 2010. First two claimants’ harassment complaints – related to sex or belief[38]The first two claimants complain of harassment related to sex and harassment related to belief. In each case they rely on:(i) the email of Andy Green on 15 May 2024 said to allege sexism and misogyny;(ii) the forwarding of that email to the Finance and General Purposes Committee on the same day;(iii) the refusal by Andy Green to retract that email and(iv) the failure of the respondent to deal with the grievance relating to that email in a timely manner. The respondent submitted that the first two claimants have little reasonable prospect of establishing that the conduct complained of was related to sex or belief.[39]The respondent accepted that these allegations will turn on witness evidence and in particular on witness evidence regarding the motivation of those involved.[40]Conduct that is “because of” a protected characteristic is “related to” it, but “related to” is a broader category of conduct: Bakkali v Greater Manchester (South) t/a Stage Coach Manchester [2018] I.C.R. 1481, at [31]. As the claimants submitted, “related to” has a relatively broad meaning: Carozzi v University of Hertfordshire [2024] EAT 169, at [17]. Taking the first claimant’s case at its highest, Andy Green’s email accused him of sexism and “was related to the claimant as a man displaying alleged sexist and misogynistic behaviour towards females”, and Andy Green behaved in this manner due to the claimants’ differing political belief and non support of the candidate who won in the 2021 election” (first claimant’s Ground of Claim, at [29] and [30], second claimant’s Grounds of Claim at [41] and [42].)[41]Taking the first two claimants’ cases at the highest, I do not consider that they have little reasonable prospect of showing that the email “related to” sex. Given the motivation attributed to Andy Green, and taking their case at its highest, I do not consider that they have little reasonable prospect of showing that the email “related to” belief. I reach the same conclusion in respect of the forwarding of the email on the same day, which the claimants say was done on the instructions of Andy Green, and in respect of Mr Green’s decision not to retract the email. What Mr Green’s email meant and his motivations will also be relevant to the forwarding of the email and the decision not to retract it.[42]Turning to the alleged failure to deal with the subsequent grievance in a timely manner, the following passage is relevant. It is from Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40, at [9]: It is important to note that it is the “conduct” that must be “related to” the protected characteristic. Thus, if it is asserted that a failure properly to investigate a grievance alleging discrimination constitutes harassment it is not sufficient that the grievance was related to the protected characteristic, the failure properly to investigate the grievance, which constitutes the conduct, must be related to the protected characteristic.[43]However the first two claimants’ Grounds of Claim state in terms that the alleged failure to deal with the grievance in a timely manner was due to their being male displaying alleged sexist and misogynistic behaviour towards females and/or due to their differing political belief. Taking their case at its highest, I do not consider that they have little reasonable prospect of success. Whether or not they do succeed will of course turn on the evidence. Amount of deposit orders[44]Rule 40(2) requires the Tribunal to make reasonable enquiries into the depositor's ability to pay the deposit and to have regard to any such information when deciding the amount of the deposit. Despite being legally represented, the claimants have not provided any written evidence of their means and have not attended the hearing. I have no information regarding their means. As both counsel submitted, I am unable to take their means into account.[45]Ms Stanley invited me to require the claimants to pay a deposit of £800 for each allegation of argument in respect of which I made a deposit order.[46]All three claimants argue that supporting a candidate in the Respondent’s election for General Secretary who was not successful was an activity of an independent trade union. Only the first two claimants argue that seeking to implement the motion that the ONC join an independent trade union was an activity of an independent trade union. I consider the appropriate amount to be £500 for each of these arguments. I say that taking into account that the result is that each of the first two claimants would need to pay deposits totalling £1,000 were they to pursue both of these arguments.