It was not necessary in a claim for detriment under section 146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 for the independence of the relevant trade union to be established in order for an employment tribunal to have jurisdiction.

The Court of Appeal so held when allowing the appeal of the claimant employee, Edward Bone, from a decision of the Employment Appeal Tribunal of 30 September 2013 by which it had allowed the appeal of the defendant employer, North Essex Partnership NHS Foundation Trust, and held that a certificate of independence, obtained pursuant to section 6 of the Trade Union and Labour Relations (Consolidation) Act 1992 in relation to the Workers of England Trade Union, of which the claimant regarded himself to be a representative, did not have retrospective effect and therefore the employment tribunal had not had jurisdiction to hear and allow the claimant’s claim that he had suffered detriment on grounds of related union activities contrary to section 146 of the 1992 Act.

The claimant was involved with the Workers of England Trade Union and regarded himself as a representative for the members of that union at the hospital at which he was employed. He issued proceedings against his employer asserting that, inter alia, he had suffered detriment on grounds related to union activities contrary to section 146 of the 1992 Act. The defendant disputed his claim but did not dispute that the union was an independent trade union for the purposes of section 146(1)(b) of the Act. The employment tribunal upheld his claim under section 146 of the Act. On the defendant’s appeal, the Employment Appeal Tribunal adjourned the hearing so that the union could apply to a certification officer for a certificate that it was independent under section 6(1) of the Act. A certificate was issued and the claimant relied upon it to establish that the union was independent. The Employment Appeal Tribunal allowed the defendant’s appeal, holding that the certificate did not have retrospective effect and therefore it had not been established that the union was independent and accordingly the tribunal had not had jurisdiction to hear the claim.

JACKSON LJ said that, first, the question of whether a trade union was independent did not affect the jurisdiction of the employment tribunal in a claim under section 146 of the 1992 Act but was merely one of a number of issues upon which the claimant might succeed. The wording of section 8(4) of the 1992 Act confirmed that the jurisdiction of the employment tribunal did not depend upon the union concerned being independent. If Parliament had intended that, it could and probably would have made possession of a certificate of independence a precondition for the issue of proceedings under section 146. The Employment Appeal Tribunal had erred in treating the question of independence as going to jurisdiction wrongly believing that it had no discretion but to take the point of its own motion when a proper exercise of that discretion would have been to refuse permission to the defendant to advance that new line of defence on appeal. Secondly, section 8(5) of the Act, which enabled the tribunal to refer “the question of independence of the trade union” to the certification officer, should be construed broadly and meant “the question whether the trade union was independent at the relevant time”. Accordingly a certificate of independence was retrospective in its effect for a reasonable period before the date of the certificate. The instant case was remitted to the Employment Appeal Tribunal.

BRIGGS and CHRISTOPHER CLARKE LJJ agreed.