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Employment Law Cases
Trade union activities and detriment
University College London v Brown
When considering whether an employer has subjected a worker to a detriment with the sole or main purpose of penalising them for taking part in the activities of an independent trade union, the question of the employer’s ‘sole or main purpose’ is a subjective question, i.e., what was in the mind of the employer at the time.
Mr Brown, a union rep, worked as an IT Systems Administrator for UCL. The university reviewed its use of email distribution lists to try and reduce the amount of potentially irrelevant emails being received by its IT department. It wanted a two-list system: a ‘mail-all’ list for management use (subject to moderation) and another list operated on an ‘opt in’ basis which could be used by everyone. The union had used the original list to communicate with staff about union matters and objected to not being able to do so in future without moderation. Mr Brown therefore created a new mailing list to use for trade union purposes. When instructed by management to delete this list, he refused and was disciplined. He complained that this sanction (formal warning) subjected him to a detriment for taking part in union activities under s. 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992).
TULR(C)A 1992, s. 146 specifies that it is unlawful for an employer to subject a worker to any detriment by any act or deliberate omission where the sole or main purpose is:
- to prevent or deter them from taking part in the activities of an independent trade union at an appropriate time, or to penalise them for doing so, or
- to prevent or deter them from making use of trade union services at an appropriate time, or to penalise them for doing so
It is for the employer to prove the reason for its act or deliberate omission (TULR(C)A 1992, s. 148(1)) and the tribunal found in favour of Mr Brown. UCL appealed.
The appeal was dismissed.
Mr Brown was taking part in protected union activities both when he created the list and when he refused to delete it. Recruiting and communicating with members are core union activities. This was an objective question for the tribunal.
However, the issue of the employer’s ‘sole or principal purpose’ for the detrimental treatment is a subjective issue, involving an inquiry into what was in the mind of the employer at the time. This may not always be straightforward and it is possible that reasonable people may reach different conclusions about the facts. But the only conclusion of fact which matters on what the employer’s ‘sole or main purpose’ was, and whether it breached s. 146, is the one reached by the tribunal.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0084_19_1712.html
Although union activity is not as common as it was in business, there are still significant numbers of businesses where there are active union officials and employers need to be alert to the consequences of getting this wrong. In this case the formal warning could not stand.