In UCL v. Brown UKEAT/0084/19, it was held that an employee, who was disciplined for failing to follow a reasonable management instruction, was subjected to a detriment on grounds relating to trade union membership or activities.

Under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), workers have the right not to be subjected to any detriment by any act of their employer if the act takes place for the sole or main purpose of preventing or deterring them from taking part in trade union activities. 

Facts

Mr Brown works as an IT Systems Administrator for UCL and is an elected trade union representative for the UCU. He is part of the ISD team which had a mailing list (ISD-All Mailing List). This enabled any ISD staff (including the UCU) to send unmoderated emails to all ISD staff.

It was used to send all sorts of emails, including matters of legitimate concern to all staff such as pay, pensions, working conditions and disputes with management relating to workplace arrangements.

Following the arrival of a new director and a request from a member of staff to be taken off the mailing list, changes were proposed to the mailing list. Essentially, the ISD-All Mailing List would be replaced by two other mailing lists: one which would be moderated; and one which would not be moderated, but which people had to actively opt into to be copied in.

The UCU objected and Mr Brown set up a new mailing list, effectively re-creating the ISD-All list (New Mailing List). He added all ISD staff to it.

When the new director asked Mr Brown to delete the New Mailing List, Mr Brown refused. He sent an email to the director in his capacity as UCU representative, explaining that the decision to create the New Mailing List had been taken by a meeting of the UCU. Therefore, in creating that New Mailing List, he was acting in his capacity as trade union representative.

Mr Brown was invited to a disciplinary meeting and ultimately issued with a formal verbal warning for failing to follow a reasonable management instruction.

Mr Brown brought a claim of detriment on grounds related to union membership or activities under section 146 of the Act. Mr Brown was successful in the tribunal and UCL appealed to the EAT. Both tribunals agreed that Mr Brown's actions in setting up the New Mailing List and refusing to take it down constituted taking part in the activities of an independent trade union (which was protected by section 146 of the Act). By issuing him with a verbal warning, UCL had subjected him to a detriment contrary to section 146. This was because the matters that were sent on the ISD-All Mailing List and New Mailing List could reasonably and objectively be described as core trade union activities.

In the closing statements, UCL tried to argue that Mr Brown had breached data protection legislation in setting up and then failing to delete the New Mailing List. This had not been previously raised and there was no evidence on the matter that had been put before the tribunal. UCL was therefore not successful in its argument.

Conclusion

When a tribunal has cause to look at whether a worker has been subjected to a detriment with the sole or main purpose of preventing or deterring them from, or penalising them for, taking part in the activities of an independent trade union under section 146 of the Act, it will focus subjectively on what was in the mind of the employer at the time. However, in a case like this where facts are inextricably bound together, that will not necessarily make it easy for an employer to put forward a clear indisputable position. Incidentally, as the EAT reminded us, the assessment required to determine if a worker gains protection under section 146 of the Act is largely objective (including analysis of (i) whether there was an "independent trade union", and (ii) phrases such as "at an appropriate time", "making use of trade union services" and "taking part in activities of an independent trade union" used in the Act). When taking action against trade union officers, employers should fully consider the implications. To say that a request is a reasonable management instruction will not necessarily be sufficient to avoid a detriment claim under section 146 of the Act. 

We do not know whether the arguments around data protection legislation would have had more success if they had been incorporated earlier. In any similar situation, employers are recommended to consider data protection risks at the earliest stages.