Disciplinary sanction as a result of trade union activity confirmed by the EAT to be unlawful

The Employment Appeals Tribunal confirms that an employee qualifies for protection under Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 is a question of fact to be decided by the employment tribunal and not the employer.

The Issue

The recent case of UCL v Brown UKEAT/0084/19/VP considered whether the Employment Tribunal adopted the right approach in applying section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Section 146 of the above act provides that a worker must not be subjected to any detriment because of an act or omission by their employer where the sole or main purpose for the act is to prevent or deter him from taking part in trade union activities.

The Facts

Mr Brown was employed by University College London and was a representative of UCU, the trade union representing university staff across the higher education sector.

Mr Brown was given a formal warning for refusing to delete an unmoderated email list for all employees in his department. Mr Brown in his capacity as trade union representative set up the list in response to his employer’s decision to replace the existing unmoderated email list, (in place for some 14 years) with one to be checked by management before emails could be sent to staff.

Mr Brown complained to the tribunal that by applying this sanction he had been subjected to a detriment because of his trade union activities. His employer argued that he was disciplined for wilfully disobeying a reasonable management instruction. The ET concluded that the employer’s main reason for disciplining Mr Brown was to prevent or penalise him for having taken part in trade union activities.

His employer appealed to the EAT against the decision and maintained that their actions were in response to his failure to carry out a reasonable instruction. The EAT considered whether the ET had adopted the correct approach when reaching their conclusion.

The EAT upheld that the act of setting up the list was part of his trade union activities. It therefore followed that the sanction applied by his employer was a direct response and therefore a trade union detriment. The EAT concluded there was no dispute that the managers sole or main motive in issuing the formal warning was to discipline Mr Brown for refusing to delete the email list (a union activity).

If an employee is subjected to a detriment as a result of a trade union activity it is not for his employer to try and justify this detriment, in this case, on the basis that it amounted to insubordination. It is a question of fact to be decided by the tribunal.

The EAT did not consider there had been any error in law and the ET had correctly concluded this was a trade union activity; therefore, even if the manager’s explanation had been accepted the detriment applied was as a result of a trade union activity and enough for Mr Brown’s claim to succeed.

Points to take away from the case

It is not open to an employer to justify a trade union detriment on the basis that the trade union activity amounted to a failure to carry out a reasonable instruction. When considered by the tribunal it is down to a finding of fact. It will likely be enough to prove a trade union detriment where it is confirmed that the act was considered a trade union activity.