Union victimisation claims

Case 3: The facts

Mike Dowling, a shop steward, was dismissed by his employer and believed that this was for reasons related to his trade union activities. He successfully claimed interim relief at an employment tribunal, which meant that the tribunal made a "continuation order" requiring his employer to continue paying him until his victimisation claim could be heard at a tribunal.

In the meantime, the company that Dowling worked for was transferred to a new employer under TUPE. When his claim came to be heard, Dawling attempted to claim against the new company, arguing that the continuation order meant he was still in employment and had therefore transferred under TUPE.

The ruling

The EAT held that there was no right to claim against the new employer. Dowling was no longer an employee of the company at the time of the transfer; he was an ex-employee but with financial protection as far as his rights to be paid were concerned.

The ruling imposes serious restrictions on the rights of union activists dismissed prior to a transfer. In many cases like this one, the employee will want to claim against the new company because it has assets that the old one does not have, but this EAT ruling forces the trade union activist to attempt to claim against an employer which may no longer even exist.

Dowling v Ilic Haulage and Berkeley Logistics EAT/0836/03