Council chief executive sent unlawful email to union members, tribunal concludes
An email sent by Wiltshire Council's chief executive to union members ahead of a vote on industrial action was unlawful as it sought to deter members from voting in favour of a strike, an Employment Tribunal has found.
The tribunal concluded that a claim from the union members that they suffered a detriment under the Trade Union and Labour Relations (Consolidation) Act 1992 was "well-founded".
The council has said it is considering appealing the decision.
The claimants argued that the email – sent in November 2022 by chief executive Terence Herbert – unlawfully sought to deter them from voting in a ballot for industrial action and/or from voting in favour of industrial action and/or unlawfully sought to prevent, deter or penalise them for being members of an independent trade union, contrary to section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.
Section 146 provides that:
(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
Herbert's email set out his position regarding an ongoing dispute concerning the removal of contractual out-of-hours pay enhancements.
The email was sent to the GMB members on the eve of a vote to decide whether they should strike over the situation.
In the email, he said: "I would ask you to please consider carefully whether further strike action will support this approach."
At the tribunal, Herbert said the email was intended to set the record straight and provide staff with accurate information.
He denied that it sought to deter the staff from voting in favour of industrial action, saying that it "wasn't particularly relevant" whether they went on strike or not.
However, the claimants said they were intimidated by the email, with one claimant noting that GMB team members "felt like we had a target on our backs".
The tribunal set out the following issues to determine:
- Did the respondent subject the claimants to a detriment by sending the email?
- Was the respondent's sole or main purpose in sending the email to prevent, deter or penalise the claimants for being members of an independent trade union?
- Was the respondent's sole or main purpose in sending the email to deter the claimants from taking part in the activities of an independent trade union at an appropriate time, namely voting in the ballot and/or voting in favour of industrial action in the ballot?
The tribunal found that the email constituted a detriment to the claimants and that the sole or main purpose of the email was to deter GMB members from voting in favour of the strike.
It concluded that: "Mr Herbert set out the council's arguments in favour of the proposals, not in neutral terms but arguing strongly for the council's position. He also included a threat that the CEOs may end up in a worse position if they did not accept the proposals.
"His immediate concern was the ballot, as is clear from the opening and closing of the email, and his sole or main purpose in sending the email at that time was to deter the GMB members, including the Claimants, from voting in favour of industrial action."
However, the tribunal did not accept that the sole or main purpose was to deter the claimants from voting at all in the ballot.
It did not accept that Herbert was seeking to prevent, deter or penalise the claimants for being members of a trade union, either.
Ultimately, the tribunal found that the claim succeeded.
Andy Newman, GMB Branch Secretary said: "The simple fact is the court ruled an email sent by Terence Herbert, the chief executive of Wiltshire Council on the eve of a strike ballot in 2022 broke the law.
"GMB had sought to settle out of court, but Wiltshire Council preferred to waste taxpayers’ money in fighting and losing in court.”
Terence Herbert, Chief Executive of Wiltshire Council, said: "We are disappointed with the outcome of this tribunal as we believed our position was strong. The email was intended to correct inaccurate information and reassure staff that the council was working to resolve this as swiftly as possible as our priority throughout has been and remains their wellbeing."
"Our priority has been, and continues to be, to resolve the terms and conditions issue as quickly and fairly as possible, and we'll work hard to achieve this."
Herbert said the council is currently seeking legal advice about an appeal.
Adam Carey
