Facts of the case

In October 2020, Mr Avsar joined Wilson James Ltd (WJL) as a security guard. The company provides outsourced security services. The following month, WJL invited Mr Avsar to a probation hearing and suspended him on full pay in the meantime. This was on the basis that it had discovered the following:

“In your most recent employment… you were leading a campaign to be taken in-house and given the same terms as all in-house employees. The union you have joined and who have   supported you in your campaign are United Voices of the World (UVW), who in their words'believe that outsourcing is antiquated and discriminatory'… Wilson James are also a contractor, which fundamentally means that there is a conflict of interest between your opinion and work with the union which lead to your protesting, and your employment with Wilson James.”

Mr Avsar responded that WJL should reverse its decision, claiming that the company was motivated by actions in his previous employment that constituted the exercise of his statutory employment law rights and human rights more broadly. As such, they amounted to victimisation for his "legitimate and lawful trade union membership and activities".

Mr Avsar applied to the County Court (CC) for an interim injunction requiring WJL to end his suspension and to cancel the hearing. The CC rejected the application on the basis that:

• There was no serious issue to be tried.
• Damages could provide Mr Avsar with an adequate remedy for any loss.
• It was more convenient to allow proceedings to take their natural course.

High Court’s decision

Mr Avsar’s appeal to the High Court (HC) against the CC’s ruling was unsuccessful. The HC ruled thathe had failed to provide the CC with any evidence of damage to his continuing ability to work as a security officer because of his suspension, and he had not yet suffered any financial loss. If he did so in the future, the CC would be able to quantify it, while an Employment Tribunal (ET) could award him damages for any non-pecuniary losses such as injury to feelings.

Those factors persuaded the HC that the CC had been correct to refuse an interim injunction. The HC nonetheless indicated that, but for that conclusion, the CC should have granted the application for the following reasons:

• Mr Avsar had established that there was a serious issue to be tried because the basis of his suspension was inextricably linked to his previous trade union activities. Those could not amount to a reasonable and proper basis for his suspension or dismissal.

• Proceedings should not have been allowed to take their natural course when an injunction could have been granted requiring WJL only to consider matters during his probation hearing to which it could properly have regard.

Implications for employers

The crucial factor in this case was Mr Avsar’s failure to provide evidence of damage to his continuing ability to work because of his suspension. The introduction in 2010 of special regulations prohibiting trade union blacklisting does, however, suggest that exclusion from work on account of trade union activities can have profound financial consequences. Other employers replicating WJL’s approach will risk being injuncted, notwithstanding the HC’s decision on this occasion.

This case also recalls other recent examples of employers facing legal action in consequence of their hostility towards activities of trade unions, including:

• An ET granted interim relief to an employee who used his trade union to lodge a grievance over coronavirus measures (Morales v Premier Fruits).
• The Employment Appeal Tribunal (EAT) upheld a finding that an employee’s dismissal was unfair where an investigating manager was motivated by a dislike of an employee’s trade union activities (Cadent Gas Ltd v Singh).
• The EAT upheld an ET decision that a union activist was unlawfully disciplined for refusing to comply with an instruction to take down an email list he had created for him and his union to communicate with employees (University College London v Brown).

There has therefore been no shortage of reminders lately of the significant danger and potential financial costs for employers, including ones such as WJL that are experienced in dealing with trade unions, if they behave detrimentally to employees on account of their trade union membership or activities.

Avsar v Wilson James Ltd – judgment available here