Can an employer discipline an employee where they refuse to follow a management request in the course of carrying out a trade union action?
University College London v Brown  UKEAT 0084_19_1712
Mr Brown (the Claimant) had been employed by University College London (UCL) since 2007 as an IT Systems Administrator in the Information Services Division (ISD). Since 2009, he had also been an active member of a national trade union (UCU) and was elected as a UCU representative. UCU is a recognised trade union by UCL.
For 14 years, the ISD had a mailing list (ISD-ALL) which could be used by anyone to send emails indiscriminately and without moderation to every member of ISD staff. On occasions, emails from UCU were received by staff in the ISD regardless of whether or not they were part of the union.
The mailing list was reviewed and it was decided that moderation controls should be applied and restrictions imposed so that only ISD staff had access. Reasons for this decision included (i) to avoid non-ISD staff from sending emails to all ISD members; and (ii) to reduce the number of unwanted emails to all ISD staff. A second unmoderated list would also be introduced, to which ISD staff could opt in if they wished. When these proposals were announced, the UCU objected to the change.
On 22 January 2016, the Claimant called a meeting and decided to set up a new mailing list with the email addresses of all staff. He made it clear in an email that staff could opt out of this new list if they so wished. On 19 February 2016, the Head of Data Services in the ISD asked the Claimant to delete the new mailing list. The Claimant refused and stated that he was acting in his capacity as Trade Union Representative.
On 29 February 2016, the Claimant was notified that he would be the subject of a disciplinary investigation. An investigation report was produced on 25 July 2016 and found that there was a case to answer in respect of the allegation that the Claimant had "wilfully disobeyed a reasonable management request to delete the email distribution list". The allegation was upheld and the Claimant was given a formal oral warning. The outcome letter stated "I do not consider your submission in defence of your action that you were acting in your capacity as a TU representative to be relevant in these circumstances". The Claimant appealed the decision, but was unsuccessful.
The Claimant brought proceedings in the Employment Tribunal (ET), that the sole or main purpose of UCL's disciplinary action was to prevent or deter him from taking part in the activities of an independent trade union at an appropriate time, or to penalise him for doing so within the meaning of section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
Section 146 of TULRCA provides that a worker has the right not to suffer detriment by any act or omission of the employer that has the sole or main purpose of:
- preventing or deterring them from being a member of, or taking part in the activities of, an independent trade union, or penalising them for doing so.
- preventing or deterring them from making use of trade union services at an appropriate time or penalising them for doing so.
- compelling them to be a member of a trade union.
What did the ET find?
The ET concluded that the Claimant's creation of the email distribution list and subsequent refusal to take it down did amount to 'taking part in activities of an independent trade union at an appropriate time' within the meaning of TULRCA. It also disapproved of UCL's decision to change the original mailing list on the basis that this fundamentally changed the landscape in terms of UCU's communication to, and recruitment of, members and non-members. These were core union activities.
The ET also went on to consider whether the sole or main purpose of the disciplinary action against the Claimant was, in the mind of the disciplining officer, to prevent or deter him from taking part in the activities of an independent trade union at an appropriate time, or to penalise him from doing so. However, the ET went on to substitute, wrongly, its own assessment for that put forward by management of UCL. It concluded that the "issue of trade union activities was being deliberately and consciously sidelined, discounted and then overridden without proper consideration, even at appeal in the determination to see the Claimant punished".
UCL appealed the decision.
What did the Employment Appeal Tribunal (EAT) find?
On appeal, whilst the EAT noted that "the ET's finding that the reasons given… in the decision letter were not "credible", by which they do appear to mean that they did not believe they were his real reasons, was a harsh and surprising one", it went on to state "if the first point was correctly decided (namely that when refusing to delete the list [the Claimant] was "taking part in the activities of an independent trade union" for the purposes of section 146), the ET's decision on that point makes no difference to the outcome. I am not persuaded that it was not correctly decided".
As such, it was decided that there was no dispute that UCL's "sole or main motive" in imposing the formal oral warning was to discipline the Claimant for refusing to delete the email distribution list. It followed from the ET's decision (that this was a union activity) that this alone was enough to make good the Claimant's claim. It meant that even if UCL's explanation of its "purpose" was accepted, it was an impermissible one, and UCL therefore lost.
What can employers take from this?
The judgment emphasises the need for employers to take care when considering action that may impact trade unions or employees of such unions. It is noteworthy that the ET in this case was disapproving of UCL's decision to change the mailing list at all, as this impacted a union's ability to carry out certain core activities.
This judgment suggests that any disciplinary action in direct response to an employee's insubordination due to carrying out a trade union activity will be impermissible. It is therefore important, if considering disciplinary action, to first analyse an employee's actions to determine whether they fall within the ambit of trade union activity. Where disciplinary action is taken, it will be paramount to keep written records of the reason for such action to evidence that it was for reasons other than for carrying out a trade union activity.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.