[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]
Yes, said the EAT, on the facts of Miller v Interserve Industrial Services Ltd.
In this case the employer provided labour for "shut-down" projects at oil depots. The business was highly unionised. A full-time trade union official from UNITE pressured the employer to recruit three named employees with a view to their acting as shop stewards. By all accounts the full time official's approach annoyed the employer who regarded the union official as having a combative manner. As a result the employer declined to recruit the individuals concerned.
The employment tribunal found that, as a fact, this was because he resented being bullied by the union and he did not wish to be dictated to about whom to employ. Because of this motivation the employer had not refused to employ the employees because of their trade union membership contrary to section 137(1) of TULR(C)A 1992.
The EAT agreed. The employees were simply caught in the "crossfire" between the employer's manager and the union official. Their non-recruitment did not relate to their trade union membership.
However, the EAT said, the outcome of this kind of case will depend entirely on the assessment of the evidence in each particular case. The EAT would expect this kind of employer's explanation to be scrutinised narrowly. But on this occasion the employer passed the test.