Fri 29 Jan 2021

Employee's trade union activity renders disciplinary sanction unlawful

Workers (and employees) have statutory protection from detriment on grounds related to trade union membership or activities.  

Specifically the right is not to be subjected to any detriment by the employer where the "sole or main purpose" of the employer's act (or deliberate failure to act) is to prevent or deter workers from taking part in the activities of a trade union at an appropriate time, or to penalise them for doing so. 

It is usually clear whether an individual attempting to make a claim of detriment has the status to do so i.e. they are a worker or employee. However, identifying (1) whether he or she was taking part in trade union "activities" and (2) whether the action of the employer that is complained about was taken "for the sole or main purpose of preventing or deterring" a worker from taking part in those activities can be more difficult to assess. In UCL v Brown the EAT considered both these issues. 

The claimant was an employee of UCL, and was an active member of a national trade union - the University and College Union - which was recognised by UCL, and an elected representative.  He worked in the Information Services Division ("ISD") at UCL.  ISD had a mailing list which could be used by anyone (including non ISD staff) to send emails indiscriminately and without moderation to every member of ISD staff - it was not possible to opt out of that list so it was guaranteed that everyone would receive any correspondence sent on it.  The claimant used this mailing list to communicate with staff including on issues of dispute between management and unions.  It was also widely used by others for reasons unconnected to union business.

UCL undertook a review of its mailing lists with the aim of reducing potentially irrelevant emails being received by staff in the ISD.  That resulted in the unmoderated list being replaced by two new lists.  One list to all staff was retained, but it would be moderated.  The second list was not moderated but staff had to opt into it.  The claimant objected to the all staff mailing list being moderated, and to the fact that the unmoderated list required an opt in.  In response the claimant recreated the original all staff unmoderated list so he could continue to use it for trade union purposes.  He refused to delete this list when asked and was given an oral warning for failing to follow what UCL believed was a reasonable management request.  UCL also decided that the claimant's submission that he was acting in his capacity as a TU rep was irrelevant in the circumstances. 

The claimant complained to an employment tribunal that, by issuing the warning, UCL had subjected him to detriment for the sole or main purposes of deterring him from taking part in trade union activities and had penalised him for doing so. 

The parties before the tribunal agreed that the claimant was an employee, that he had been subjected to a detriment (the warning) and that if the claimant was partaking in the activities of an independent trade union he was doing so at an appropriate time.  The dispute was whether by recreating the all staff list and refusing to delete it the claimant was undertaking the activities of an independent TU, and whether the motive of the employer in issuing the warning was for the sole or main purpose of deterring or penalising the claimant for taking part in such activities. 

The tribunal found the activities in question to be protected trade union activities.  The tribunal was critical of the decision by UCL to change the mailing list at all as it impacted on the union's ability to carry out certain core activities including recruitment and communication.  The claim was therefore successful as the warning was a penalty for undertaking protected activities.  UCL appealed to the EAT.

The EAT accepted that the employment tribunal had correctly decided that the activities were those of an independent TU - that was an objective question based on evidence for the tribunal to decide.  The question of the employer's sole or main motive was a subjective one to be judged by enquiring what was in the mind of the employer at the time.  On the basis of the evidence before it the tribunal had been entitled to find that the sole or principal purpose of the oral warning was to discipline the claimant for what the tribunal had already concluded were TU activities.  As such the EAT dismissed the appeal, upholding the tribunal's finding that the claimant had been subjected to a detriment on grounds related to trade union activities.

In most other circumstances the actions taken by the claimant would clearly have been misconduct and UCL would have been within their rights to issue a warning for failure to follow a reasonable management instruction so it is easy to see why UCL took the action they did.  They should not however have been so quick to dismiss the trade union activity aspect of the claimant's defence to the misconduct charge.  The case highlights the importance of employers properly analysing whether the actions of the employee are indeed trade union activities.  In deciding this an employment tribunal would make a common sense based assessment having considered all the evidence before it.  Employers can and should go through a similar thought process where this is a risk - something that is more likely where the individual involved is a trade union representative. 

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