Employment Cases Update

Bone v North Essex Partnership NHS Foundation Trust [2014] EWCA Civ 652

Date published: 17/05/2014

Appeal concerning whether the claimant's trade union was independent for the purposes of suffering detriment under TULRCA and impact on the jurisdiction of the ET in such claims. Appeal allowed and remitted to the EAT so that it can deal with the employer's substantive grounds of appeal against the decision of the employment tribunal.

The claimant considered himself to be the union officer for the Workers of England Trade Union and as a result of 'strife' between the claimant and Unison, the primary hospital union, he brought proceedings alleging discrimination and detriment relating to his union activities. The ET dismissed the discrimination claims but upheld his detriment claim. On appeal, the EAT held that the WEU was not an independent trade union at the time of the allegations relied on, which took place in 2010, as a certificate could only be dated in 2013 when it was obtained before the hearing at the EAT at their request. The EAT therefore concluded that the ET had no jurisdiction to hear the claims.

In this appeal, the claimant submitted broadly that the Trust had not challenged the independence of his union at the ET and had only done so when the point was raised by the EAT: therefore this was a new line of defence that should not have been permitted. Further the certificate was conclusive evidence that the union existed in 2010 and the EAT had erred in finding otherwise. Jackson LJ largely accepted these submissions and summarises his conclusion at [68-69]

"In my view, "independence" was a constituent element of Mr Bone's claim, not a matter which affected the jurisdiction of the tribunal. In the proceedings before the employment tribunal the employer never disputed that the union was independent. The EAT erred in allowing, indeed encouraging, a new line of defence to be advanced which the employer had neither pleaded in its response nor raised in the proceedings below.

He also confirms that TULRCA sections 6 and 8 "must be construed in such a way that, when necessary, the Certification Officer can determine the historic status of a trade union" and that Parliament, having created the rights under s146 would not "erected arbitrary barriers to prevent some meritorious claimants from enforcing those rights"

Case No: A2/2013/3106

Neutral Citation Number: [2014] EWCA Civ 652

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

UKEAT035212GE

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/05/2014

Before :

LORD JUSTICE JACKSON

LORD JUSTICE BRIGGS

and

LORD JUSTICE CHRISTOPHER CLARKE

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Between :

BONE (Appellant)

- and -

NORTH ESSEX PARTNERSHIP NHS FOUNDATION TRUST (Respondent)

 

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Mr Shabbir Lakha (instructed by Tilbrooks) for the Appellant

Ms Rehana Azib (instructed by Bevan Brittan) for the Respondent

Hearing date: Monday 14th April 2014

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Judgment

Lord Justice Jackson:

1. This judgment is in six parts, namely:

Part 1. Introduction (paragraphs 2 to 9)

Part 2. The facts and the tribunal proceedings (paragraphs 10 to 26)

Part 3. The appeal to the Court of Appeal (paragraphs 27 to 30)

Part 4. The jurisdiction issue (paragraphs 31 to 57)

Part 5. The retrospectivity issue (paragraphs 58 to 66)

Part 6. Executive summary and conclusion (paragraphs 67 to 69)

Part 1. Introduction

2. The first issue in this appeal is whether, in a claim for detriment under section 146 (1) (b) of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act" or "the Act"), the independence of the relevant trade union must be established in order for the employment tribunal to have jurisdiction. The second issue is whether a certificate of independence issued under section 6 of the 1992 Act has retrospective effect and, if not, how the historic position can be established.

3. Mr Edward Bone was the claimant in proceedings before the employment tribunal and respondent before the Employment Appeal Tribunal ("EAT"). He is appellant before this court. I shall refer to him as "Mr Bone".

4. The North Essex Partnership NHS Foundation Trust was respondent in the proceedings before the employment tribunal and appellant before the EAT. In this court it is once again the respondent. I shall refer to it as "the NHS Trust" or "the Trust".

5. Section 5 of the 1992 Act provides:

"Meaning of "independent trade union".

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."

6. Section 6 of the 1992 Act provides:

"Application for certificate of independence.

(1) A union whose name is entered on the list of trade unions may apply to the Certification Officer for a certificate that it is independent.

....

(3) If an application is made by a trade union whose name is not entered on the list of trade unions, the Certification Officer shall refuse a certificate of independence and shall enter that refusal on the record.

(4) In any other case, he shall not come to a decision on the application before the end of the period of one month after it has been entered on the record; and before coming to his decision he shall make such enquiries as he thinks fit and shall take into account any relevant information submitted to him by any person.

(5) He shall then decide whether the applicant trade union is independent and shall enter his decision and the date of his decision on the record.

(6) If he decides that the trade union is independent he shall issue a certificate accordingly; and if he decides that it is not, he shall give reasons for his decision."

7. Section 8 of the 1992 Act provides:

"Conclusive effect of Certification Officer's decision.

(1) A certificate of independence which is in force is conclusive evidence for all purposes that a trade union is independent; and a refusal, withdrawal or cancellation of a certificate of independence, entered on the record, is conclusive evidence for all purposes that a trade union is not independent.

....

(4) If in any proceedings before a court, the Employment Appeal Tribunal, the Central Arbitration Committee, ACAS or an employment tribunal a question arises whether a trade union is independent and there is no certificate of independence in force and no refusal, withdrawal or cancellation of a certificate recorded in relation to that trade union-

(a) that question shall not be decided in those proceedings, and

(b) the proceedings shall instead be stayed or sisted until a certificate of independence has been issued or refused by the Certification Officer.

(5) The body before whom the proceedings are stayed or sisted may refer the question of the independence of the trade union to the Certificate Officer who shall proceed in accordance with section 6 as on an application by that trade union."

8. Section 146 of the 1992 Act provides:

"Detriment on grounds related to union membership or activities.

(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.

....

(5) A worker or former worker may present a complaint to an employment tribunal on the ground that he has been subjected to a detriment by his employer in contravention of this section.

(5A) This section does not apply where -

(a) the worker is an employee; and

(b) the detriment in question amounts to dismissal."

9. Having set out the relevant statutory provisions, I must now summarise the facts and the tribunal proceedings.

Part 2. The facts and the tribunal proceedings

10. Mr Bone began working for the NHS Trust as a band 5 registered mental nurse in June 2006. In July 2008 he was promoted to band 6.

11. In April 2009 Mr Bone became involved with the Workers of England Trade Union ("WEU") and regarded himself as a representative for the members of that union at the hospital.

12. A "working in trust partnership agreement" existed between the NHS Trust and the recognised trade unions. The WEU was not a party to that agreement. Amongst the recognised trade unions the two principal ones were the Royal College of Nursing and Unison.

13. Mr Bone was at all material times a member of Unison in addition to being an active member of WEU.

14. Neither the NHS Trust nor the existing trade unions welcomed the arrival of WEU on the scene. Between late 2009 and 2011 there was much strife between Mr Bone and Unison. The NHS Trust did not support Mr Bone.

15. On 20th January 2011 Mr Bone commenced proceedings against the NHS Trust before the employment tribunal at Bury St Edmunds, asserting that he had suffered (i) racial discrimination and (ii) detriment on grounds related to union activities contrary to section 146 of the 1992 Act.

16. On 3rd March 2011 the NHS Trust served its response. The Trust disputed Mr Bone's claim on a number of grounds, but did not dispute that WEU was an independent trade union for the purposes of section 146 (1) (b) of the 1992 Act.

17. The employment tribunal convened a pre-hearing review on 28th July 2011. On that occasion Employment Judge Morron dealt with a number of jurisdictional issues. He struck out five claims which had no prospect of success and gave case management directions in respect of the surviving claims.

18. The trial of Mr Bone's claims took place at the Bury St Edmunds Employment Tribunal over nine days during January and February 2012. The NHS Trust strongly disputed Mr Bone's claims on the facts but did not dispute that WEU was an independent trade union.

19. The employment tribunal handed down its reserved judgment on 1st March 2012. After reviewing the factual history in detail, the tribunal upheld four specific complaints made by Mr Bone. These were as follows:

i) On 5th May 2010 Steve Adshead, a fellow employee and Unison local representative, circulated an email suggesting that WEU was linked with fascism and the British National Party. The NHS Trust failed to deal with this matter in accordance with their disciplinary procedures and dignity at work policies.

ii) At a meeting in May 2010 Mrs Chalkley, a nursing colleague, described Mr Bone as a bigot. The NHS Trust did not intervene robustly as it should have done to protect one member of its workforce against another.

iii) On 28th May 2010 Mr Adshead arrived at the duty office, in order to commence his duties. He greeted Mr Bone "Hello Adolf". The NHS Trust did not deal with this matter effectively, nor did it require Mr Adshead to apologise.

iv) On 1st December 2010 Mr Hutchison, a local Unison branch official, sent an email to a member of staff, Mr Alexander Watts, at his workstation via the internal email system. Mr Hutchison expressed concerns about the "creeping crypto fascism" of WEU. This email was, in the tribunal's view, the consequence of the NHS Trust management's "weak and lamentably ineffective conduct" in failing to protect Mr Bone.

20. The tribunal rejected Mr Bone's claim for racial discrimination, but upheld his claim under section 146 of the 1992 Act. The tribunal held that the four matters identified above had the effect of preventing or deterring Mr Bone from taking part in the activities of an independent trade union at an appropriate time and also thereby penalising him for doing so. Accordingly the tribunal held that Mr Bone's claim fell within section 146 (1) (b) of the 1992 Act.

21. The NHS Trust was aggrieved by the decision of the employment tribunal. Accordingly it appealed to the EAT.

22. The appeal came on for hearing at the EAT before His Honour Judge McMullen QC, Mr M Clancy and Mrs A Gallico on 10th December 2012. The panel noted that WEU was a trade union duly named on the list maintained by the Certification Officer. In the panel's view, however, it was not clear whether the union was "independent". Accordingly the panel adjourned the hearing of the appeal, so that WEU could apply to the Certification Officer for a certificate that it was independent.

23. Mr Bone on behalf of WEU duly applied to the Certification Officer pursuant to section 6 (1) of the 1992 Act. Mr David Cockburn, the Certification Officer, carried out all appropriate inquiries. On 27th June 2013 he issued a certificate, stating:

"I hereby certify that

Workers of England Union

is an independent trade union within the meaning of section 5 of the Trade Union and Labour Relations (Consolidation) Act 1992"

24. The NHS Trust's appeal was restored for hearing at the EAT before the same panel as before on 30th September 2013. Mr Bone duly relied upon the certificate dated 27th June 2013 in order to establish that WEU was an independent trade union during 2010. He was unsuccessful. The panel held that the certificate did not have retrospective effect. Accordingly it was not established that WEU was independent during 2010, when the relevant events occurred.

25. In those circumstances the EAT did not deal with any of the NHS Trust's substantive grounds of appeal. Instead it held that WEU was not an independent trade union. Accordingly the employment tribunal did not have jurisdiction to hear Mr Bone's claim. The EAT allowed the Trust's appeal on that basis.

26. Mr Bone was aggrieved by the EAT's decision. Accordingly he appealed to the Court of Appeal.

Part 3. The appeal to the Court of Appeal

27. By an appellant's notice issued on 30th October 2013 Mr Bone appealed to the Court of Appeal on two grounds which I would summarise as follows:

i) The absence of a certificate of independence was not a jurisdictional bar for bringing a claim under section 146 of the 1992 Act. The NHS Trust had not challenged the independence of WEU as one of their grounds for resisting the claim at first instance. In those circumstances the EAT should not have allowed, much less insisted, that this new line of defence be dealt with on the appeal.

ii) The certificate dated 27th June 2013 was conclusive evidence that WEU was independent in 2010. The EAT erred in holding otherwise.

28. I shall refer to the issue raised by the first ground of appeal as "the jurisdiction issue". I shall refer to the issue raised by the second ground of appeal as "the retrospectivity issue".

29. This appeal was heard on 14th April 2014. Mr Shabbir Lakha appeared for Mr Bone, as he had done before the EAT. Ms Rehana Azib appeared for the NHS Trust, as she had done both before the employment tribunal and before the EAT. I am grateful to both counsel for their assistance.

30. Having set the scene, I must now turn to the jurisdiction issue.

Part 4. The jurisdiction issue

31. Ms Azib submits that the question whether WEU was independent went to the jurisdiction of the employment tribunal. Accordingly, if the union was not independent, the tribunal had no jurisdiction. She concedes that she and her clients did not take the point below, but submits that that does not matter. The EAT was correct to raise the question of independence of its own motion and thereafter to allow the appeal on that ground.

32. Mr Lakha submits that to establish a claim under section 146 (1) (b) the claimant needs to prove a number of matters. These include the conduct of the employer, the fact that the conduct prevented or deterred him from taking part in the activities of a trade union and the fact that the trade union is independent. If the claimant fails to establish all the ingredients, then his claim under section 146 (1) (b) will fail. That does not mean, however, that the tribunal lacks jurisdiction. The tribunal has jurisdiction and would be rejecting the claim in the exercise of its jurisdiction. The extent to which the claimant needs to prove each element of his claim depends upon which matters the employer puts in issue.

33. Mr Lakha submits that in the present case the NHS Trust disputed the allegations of conduct and disputed that it had prevented or deterred Mr Bone from taking part in the activities of WEU. But the Trust did not dispute that WEU was an independent trade union. The Trust had ample opportunity to raise this argument. It could and should have done so in the response which it filed at the employment tribunal. Failing that, the Trust could and should have raised the matter at the pre-hearing review. If that had happened, Employment Judge Morron should and no doubt would have referred the issue to the Certification Officer pursuant to section 8 (5) of the 1992 Act. This would have achieved a decision from the Certification Officer when the events in issue were still relatively fresh. As it is, through no fault of Mr Bone, there was no Certification Officer's decision until three years after the events in issue.

34. In addressing the jurisdiction issue, I must look at the scheme of the 1992 Act in order to see the context in which the relevant provisions occur. Part I of the Act (sections 1 to 121) deals with trade unions. Part II (sections 122-136) deals with employers' associations. Part III (sections 137 to 177) deals with rights in relation to union membership and activities. The subsequent parts of the Act are not relevant for present purposes.

35. Section 1 of the 1992 Act defines "trade union". Section 2 provides for the Certification Officer to keep a list of trade unions. The fact that an organisation's name appears on the list is "evidence" that it is a trade union: see section 2 (4). Section 3 sets out a procedure whereby organisations can apply to have their names entered on the list. There is no suggestion, however, that organisations not on the list cannot be trade unions. Indeed it would be a very odd reading of sections 1 and 2 to say that an organisation which satisfies the definition in section 1 and makes a successful application under section 2 is not a trade union until the moment when its name appears on the list.

36. Section 5 of the 1992 Act defines which trade unions are "independent". I have set out the full provisions in Part 1 above. Essentially, a trade union is "independent" if it is free from control or interference by the employer(s).

37. Section 6 of the 1992 Act gives the Certification Officer power to certify that certain trade unions are independent. The full provision is set out in Part 1 of this judgment. In essence, upon receiving an application from a trade union, the Certification Officer will make inquiries. If he is satisfied that the trade union meets the criteria set out in section 5, he will issue a certificate to the effect that the union is independent. Section 7 provides for the withdrawal or cancellation of such certificates in appropriate circumstances.

38. Section 8 (1) contains two important provisions. First, a certificate of independence is conclusive evidence that the named trade union is independent. Secondly, a refusal, withdrawal or cancellation of such a certificate is conclusive evidence that the trade union is not independent.

39. Section 8 (1) is also important for what it deliberately omits to say. It does not say that, absent refusal, withdrawal or cancellation, the lack of a certificate is conclusive evidence (or even evidence) that a union is not independent. The matter remains undecided. The union may satisfy the criteria set out in section 5 or it may not.

40. The same logic applies to section 6 as applies to section 2. If a trade union which satisfies the criteria in section 5 makes a successful application under section 6, it would be absurd to say that such a trade union is not independent until the moment when the ink dries on the certificate. The certificate conclusively evidences independence, it does not change the character of the trade union.

41. As a matter of logic, a certificate asserting that a trade union is independent states not only the current position, but also the antecedent state of affairs at least during the period of the Certification Officer's inquiries.

42. Although the trade union's independence must stretch back for some time before the moment of certification, it does not stretch back indefinitely. An organisation may start life as a staff association or a body dominated by the employer, but evolve so as to achieve independence: see Blue Circle Staff Association v Certification Officer [1977] 1 WLR 239 in particular at 247-248 and Association of H.S.D (Hatfield) Employees v Certification Officer [1978] ICR 21, in particular at 26.

43. I turn now to sections 8 (4) and (5). The effect of these provisions is as follows. If, in the course of litigation, there is a dispute as to whether a trade union is independent, the court or tribunal shall not decide that question. Instead the union concerned, alternatively the court or tribunal, shall refer that question to the Certification Officer.

44. Again it is important to note what the section does not say. Section 8 (4) does not say that this procedure must be followed in any event. That would be an unjustifiable waste of resources. Instead the section only requires this procedure to be followed "if ... a question arises whether a trade union is independent". In other words, the statute requires a reference to the Certification Officer if there is a dispute as to whether the union satisfies the criteria in section 5. It does not require such a reference if it is common ground that the union does, alternatively does not, satisfy those criteria.

45. The provisions of sections 5 to 8 of the 1992 Act are applicable to all later sections in Parts I and III of the Act which refer to "independent" trade unions.

46. If the Act requires a certificate of independence to be obtained as a pre-condition for any proceedings or entitlement, the Act says so expressly. Thus paragraph 6 of schedule A1 to the Act provides that a union seeking recognition from an employer cannot make a valid request for recognition unless it has a certificate of independence.

47. Against that background, let me now turn to the section 146, which is located in Part III of the 1992 Act. This section sets out valuable rights for trade union members. Some of these rights are applicable to any trade union. Others are only applicable to independent trade unions. Section 146 (1) (b) falls into the latter category.

48. Significantly section 146 (1) (b) does not make the existence of a certificate of independence a pre-condition for asserting a claim for breach of the statutory right. The effect of section 146 (5) and (5A) is that an employment tribunal has jurisdiction to deal with any complaint under section 146, except where the "detriment" suffered is dismissal.

49. In my view the effect of section 146 (1) (b) is as follows. If a trade union member asserts a breach of that provision, he must establish a number of matters. One of those matters is the fact that the union involved is independent, i.e. that it satisfies the criteria in section 5. The respondent to such a claim may admit or deny each of the constituent elements of the claim. One of those matters is the independence of the union. If the respondent does not dispute the independence of the union, then that issue drops out of the dispute which is being adjudicated. If the respondent denies that the union is independent and if no certificate has yet been given, refused or withdrawn, then the question of independence remains at large and must be referred to the Certification Officer. In those circumstances the question of independence is merely one of the matters in dispute in the proceedings.

50. I conclude from the foregoing analysis that the question whether a trade union is independent does not affect the jurisdiction of the employment tribunal in a claim under section 146. It is merely one of a number of issues upon which the claimant may or may not succeed.

51. The wording of section 8 (4) of the Act confirms my view that the jurisdiction of the employment tribunal does not depend upon the union concerned being independent. Section 8 (4) envisages that proceedings are already under way before a tribunal, when the question happens to arise. There is no suggestion that those proceedings should not be under way at all. If Parliament had intended to create that result it could, and probably would, have made possession of a certificate of independence a pre-condition for the issue of proceedings under section 146.

52. Let me now return to the facts of the present case. The NHS Trust chose not to dispute that WEU was independent when it served its response. Likewise the Trust did not raise this issue at the pre-hearing review on 28th July 2011. If the Trust had raised the issue at the proper time, the employment tribunal would almost certainly have referred the issue to the Certification Officer pursuant to section 8 (5). As a matter of case management, it was essential to resolve preliminary matters of that nature before the tribunal embarked upon a nine day hearing with extensive oral evidence and legal argument. It is an unacceptable waste of costs and resources to subject the parties to a prolonged hearing which may be futile.

53. By the time this case reached the EAT, it was in my view too late for the NHS Trust to raise this line of defence. For case management reasons, the Trust should not have been permitted to raise such a defence at that late stage.

54. As a matter of reality, it was obvious to all concerned that WEU was in no way dependent upon or under the control of the employer. Quite the opposite was the case. There appears to have been strong antipathy at all times between the NHS Trust and that particular union. In those circumstances it is hardly surprising that the NHS Trust never challenged WEU's independence, until encouraged to do so by the EAT.

55. Let me now draw the threads together. In my view the question of independence did not go to jurisdiction. The EAT erred in treating it as doing so. In those circumstances the EAT wrongly believed that it had no discretion but to take the point of its own motion. In reality the EAT did have a discretion. A proper exercise of that discretion would have been to refuse permission for the Trust to advance that new line of defence on appeal.

56. In the result, therefore, I would allow Mr Bone's appeal on the first ground.

57. Since that is sufficient to dispose of this appeal, I shall deal with the appellant's second ground more briefly. That concerns the retrospectivity issue.

Part 5. The retrospectivity issue

58. The provisions of the 1992 Act, which I have set out in Part 1 above, present a puzzling problem for the court. Section 6 (5) uses the present tense. The Certification Officer decides whether a trade union is independent. Likewise under section 6 (6) he certifies that the union is independent. This language led the EAT to conclude that the certificate of independence concerning WEU, dated 27th June 2013, related only to the current state of affairs; it did not establish that WEU was independent in 2010, the period when Mr Bone's complaints arose.

59. The EAT has concluded that there is no mechanism for determining whether WEU was independent during 2010. Section 8 (4) of the 1992 Act bars any court or tribunal from deciding that question. Furthermore the Certification Officer, who is the only person authorised to determine the independence issue, can only consider the present state of affairs, not the historic position.

60. Ms Azib on behalf of the NHS Trust valiantly strove to support the EAT's conclusion. In my view that conclusion, although defensible on a literal reading of the Act, leads to an absurd result. Anyone alleging breach of section 146 (1) (a) or (b) is basing his or her claim upon past events. The employment tribunal therefore needs to know whether the union was independent at the relevant time. If that matter is disputed, on the EAT's analysis, the dispute can never be resolved. Section 6 prevents the Certification Officer from answering the vital question. Section 8 prevents the tribunal from doing so. If the EAT is correct, the status of the union in the past (perhaps even the very recent past) becomes a deep mystery which no-one is allowed to fathom.

61. I am not prepared to accept that Parliament, having created rights under section 146, then erected arbitrary barriers to prevent some meritorious claimants from enforcing those rights.

62. What then is the solution to the conundrum? In my view, there are two solutions. First, for the reasons set out in Part 4 above, the issue of a certificate of independence on a particular date does not mean that the union was not independent before that date. Self-evidently the union's independence stretches back for some period before the issue of the certificate. In a case where an employment tribunal is dealing with events in the recent past, the Certification Officer's certificate should be taken as applying to those events. As Blue Circle and Association of H.S.D (Hatfield) Employees illustrate, evolution from dependence to independence is a gradual process. It does not happen overnight. If a union is certified to be independent on a particular date, it is inevitable that the union was independent for at the very least a modest period before that date. Employment tribunals must adopt a reasonable and common sense approach to this issue. Such an approach will usually lead to the conclusion that the Certification Officer's certificate issued during the course of the proceedings is applicable to the period which is under consideration. The short limitation period in employment tribunal proceedings usually means that the tribunal is investigating matters in the recent past.

63. There will, of course, be cases where the tribunal needs to inquire into events which occurred several years earlier. A certificate relating to the current state of affairs may not suffice for that purpose. How then is the tribunal to investigate that historic position? Section 8 (4) bars the tribunal from hearing relevant evidence and deciding the matter for itself.

64. In my view, the answer is that section 8 (5) should be construed broadly. That section enables the tribunal to refer "the question of the independence of the trade union" to the Certification Officer. That phrase must mean "the question whether the trade union was independent at the relevant time". If it does not have that meaning, there is no purpose in requiring the reference to be made. In other words section 8 (5) enables a court or tribunal to refer a historic question to the Certification Officer. The Certification Officer will then be required to answer that question, doing the best he can on the available evidence.

65. Let me now return to the present case. In truth there was no issue between the parties on the question of WEU's independence. It is hard to imagine a union which was less subservient to the employer than WEU. There can be little doubt that what the Certification Officer certified in 2013 reflected the position in 2010. If, however, the EAT entertained any doubts in this regard, it should have referred a historic question to the Certification Officer. It should have asked: "was WEU independent in 2010?" I have little difficulty in imagining what answer the Certification Officer would have given. In my view, if the EAT was right to raise this new issue at a late stage, one way or another it would or should have arrived at the conclusion that WEU was independent in 2010.

66. I summarise my conclusions on the retrospectivity issue as follows. A certificate of independence is retrospective in its effect for a reasonable period before the date of the certificate. If a court or tribunal needs to know whether a trade union was independent in the more distant past, it can formulate a historic question under section 8 (5) and the Certification Officer must answer that question on the basis of the available evidence.

Part 6. Executive summary and conclusion

67. Mr Bone brought a claim against his employer for breach of section 146 (1) (b) of the Trade Union and Labour Relations (Consolidation) Act 1992, namely that the employer had prevented or deterred him from taking part in the activities of an independent trade union, or had penalised him for doing so. The employment tribunal upheld that claim. The Employment Appeal Tribunal ("EAT") allowed the employer's appeal, holding that Mr Bone's union was not "independent" and accordingly the employment tribunal did not have jurisdiction.

68. In my view, "independence" was a constituent element of Mr Bone's claim, not a matter which affected the jurisdiction of the tribunal. In the proceedings before the employment tribunal the employer never disputed that the union was independent. The EAT erred in allowing, indeed encouraging, a new line of defence to be advanced which the employer had neither pleaded in its response nor raised in the proceedings below. If my Lords agree, this appeal is allowed. The matter must be remitted to the EAT, so that it can deal with the employer's substantive grounds of appeal against the decision of the employment tribunal.

69. Finally, I add that sections 6 and 8 of the 1992 Act must be construed in such a way that, when necessary, the Certification Officer can determine the historic status of a trade union.

Lord Justice Briggs:

70. I agree.

Lord Justice Christopher Clarke:

71. I also agree.