A trade union officer who was seconded to the Fire Brigades Union from the London Fire Brigade was not an employee of the union and cannot bring an unfair dismissal claim, the Employment Appeal Tribunal has ruled.
It found that Mr Embery, who in 2019 was dismissed from his position on the union’s executive council, was an elected official rather than an employee of the union, and was still employed by the London Fire Brigade (LFB), which continued to pay his salary although he worked for the union full-time.
Embery joined the LFB in 1997 and remains employed by the organisation to this day.
He was an active member of the Fire Brigades Union (FBU) and in 2008 was elected regional officer for London. From 30 September 2008, the LFB released him from day-to-day firefighting duties so that he could devote himself to full-time duties for the FBU.
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Releases of this kind have been agreed by the FBU and LFB. One of the provisions of the agreement was for LBU to continue to pay the union official’s salary, which would then be reimbursed by the FBU.
Embery continued to work in various senior positions at the FBU and in 2017 he was elected as the London region’s representative on its executive council.
However, following a disciplinary process in 2019 after his appearance at a pro-Brexit rally in a personal capacity, Embery was sanctioned for a breach of the union’s rules and was dismissed.
In 2019, Embery brought an employment tribunal claim for unfair dismissal and religion or belief discrimination against the FBU.
The employment tribunal judge found that Embery was an employee of the union because his salary was covered by the union, and the FBU, rather than LFB, had substantial control over his work. It agreed that he had been unfairly dismissed.
However, the FBU appealed this decision. It argued that as an elected lay official, Embery could not have been dismissed unfairly because he was not an employee of the union.
The EAT allowed the FBU’s appeal and threw out the employment tribunal’s judgment, substituting it with a decision dismissing Embery’s claim for unfair dismissal.
The judgment said: “We do not consider that there was a sufficient evidential basis for the ET’s conclusion that Mr Embery was under the control of the appellant to a degree indicating an employment relationship.
“The actual imposition on him of disciplinary measures did not distinguish him from any other member and therefore logically did not demonstrate control of a kind which would signal an employment relationship. And, although we do not doubt that his duties were a full-time commitment, that does not mean that a second employment contract was superimposed upon the first.”
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FBU national officer Mark Rowe said: “The ruling will come as a relief not only to the FBU but to the whole trade union movement. It is vital that the distinction between staff and officials is preserved. Lay officials are the elected leadership and representatives of the union, not its employees. Treating lay officials as employees would have had serious implications, both in principle and in practice.”
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