Case 4104417/2020 · Employment Tribunal
sitting with Members J Auld and J Copland Mr I Armstrong v Represented by: Mr R Lawson Solicitor API Foilmakers Limited — 2022
- Case reference
- 4104417/2020
- Decision date
- 14 January 2022
- Jurisdiction
- Scotland
- Judge
- Employment Judge J McCluskey
- Panel members
- J Auld, J Copland
Parties
2 namedClaimant
sitting with Members J Auld and J Copland Mr I Armstrong
Key findings
Tribunal's reasoningIain Armstrong, Robert Carstairs and David Wilson had been made redundant when API Foils Limited went into administration on 31 January 2020. The respondent, API Foilmakers Limited, acquired the Livingston business on 26 February 2020 and wrote to former production employees asking them to register interest in work. Fifty-eight candidates attended Staffplus assessment centres, where they were scored on seven competency-based questions. The tribunal found Staffplus had no information about union membership or activities, that the respondent had decided at the outset to use a cut-off score of 25 points, and that the three claimants scored 24, 18 and 14 respectively. The tribunal also found that 16 of those offered employment were trade union members and that union membership was not a factor in the selection decision.
The section 137 TULRCA 1992 refusal of employment claims failed because the tribunal accepted that the reason why the claimants were not offered work was their interview scores, not trade union membership or activities. The tribunal rejected the suggestion that Staffplus colluded with the respondent, found the interview questions to be ordinary competency-based questions, and accepted that the respondent was engaging with Unite the Union in March and May 2020 rather than acting against the union. It also rejected the existence of any anti-union background or any 'getting back list'. The section 146 claims failed at the threshold because the tribunal held that applicants for employment are not 'workers' for that provision, given the wording of section 151(1B) TULRCA 1992.
The blacklists claim under regulation 5 of the 2010 Regulations failed because the tribunal found there was no prohibited list in existence and no refusal of employment related to such a list. David Wilson's added claims under sections 43B and 47B ERA 1996 and section 44(1)(c) ERA 1996 also failed. The tribunal held that he had never been a worker or employee of the respondent, so he could not rely on those provisions against API Foilmakers Limited; it further found that his personal injury claim against API Foils Limited did not affect the respondent's decision and that the refusal to employ him was driven by his score of 14. As no claim succeeded, the tribunal made no remedy award.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Trade union | Section 137 TULRCA 1992 refusal of employment claim by the three claimants. The tribunal found the respondent's reason for not offering employment was the interview scores from Staffplus, all below the pre-set cut-off of 25, and not union membership or activities. | Dismissed | — | — |
| Trade union | Section 146 TULRCA 1992 detriment claim. The tribunal held the claimants were not 'workers' for this provision because section 151(1B) excludes those merely seeking work, so the claim failed without any need to decide detriment on the facts. | Dismissed | — | — |
| Other | Regulation 5 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 claim. The tribunal found there was no prohibited list or 'getting back list' in existence and therefore no refusal of employment for a reason related to such a list. | Dismissed | — | — |
| Whistleblowing | DW's sections 43B and 47B ERA 1996 protected disclosure claim. The tribunal held DW was never a worker of the respondent, found the non-appointment was caused by his score of 14 rather than any personal injury disclosure, and rejected the invitation to read the legislation down to cover a job applicant. | Dismissed | — | — |
| Other | DW's section 44(1)(c) ERA 1996 health and safety detriment claim. The tribunal held DW was not an employee of the respondent and declined to interpret the provision so as to extend protection to a job applicant. | Dismissed |
Legal tests applied
12 references- section 137 TULRCA 1992
- section 146 TULRCA 1992
- section 151(1B) TULRCA 1992
- regulation 3 Employment Relations Act 1999 (Blacklists) Regulations 2010
- regulation 5 Employment Relations Act 1999 (Blacklists) Regulations 2010
- section 43B ERA 1996
- section 43C ERA 1996
- section 47B ERA 1996
- section 44(1)(c) ERA 1996
- Miller and others v Interserve Industrial Services Ltd UKEAT/0244/12
- Croke v Hydro Aluminium Worcester Ltd [2007] ICR 1303
- National Union of Professional Foster Carers v Certification Officer [2021] EWCA Civ 548
Official outcome judgment PDF
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