In University College London (UCL) v. Brown, the Employment Appeal Tribunal (EAT) held that it was unjustifiable for an employer to take action against an employee if their insubordinate acts were part of trade union activities.
The claimant, Mr Brown, had been employed by UCL for approximately 13 years as an IT administrator. He became a member of a national trade union in 2009 and was elected as a representative. The particular union, UCU, was recognised by UCL.
Mr Brown was part of a team in the Information Services Division (ISD). The ISD had a mailing list and, over the course of 14 years, unmoderated emails were sent to every member of the ISD team, some 400 people. This resulted in ISD staff receiving many emails which were not directly relevant to them, as well as ones which were. UCU sometimes used the mailing list to send out emails to everyone in the ISD.
UCL wanted to reform the way ISD staff received emails so it removed the “all ISD staff” mailing list. In its place, it set up a new mailing list that still included all ISD staff but was moderated to reduce the number of unwanted emails going to them. They also set up a new unmoderated mailing list which ISD staff could opt into. UCU objected to these changes as they considered that it interfered with their ability to communicate with employees.
Mr Brown, acting as a trade union member, set up another mailing list to replace the one UCL had removed. It included all ISD staff and was again unmoderated. Mr Brown sent an email to ISD staff using this new mailing list. This email included information about opting out from the new list.
Mr Brown was subsequently asked by management to delete the new list. He refused, stating that his actions were carried out in his capacity as a trade union representative. UCL decided to discipline him for refusing to comply with the request to delete the list when instructed.
Mr Brown was given a formal oral warning, which he appealed. His appeal was unsuccessful and he brought a claim of detriment on grounds related to union membership or activities under section 146 Trade Union and Labour Relations (Consolidation) Act 1992 to the Employment Tribunal (ET). This confers a right on the employee not to suffer detriment by any act or omission of the employer that has the sole purpose of, in this particular case, preventing or deterring the employee from being a member of a trade union, taking part in trade union activities or penalising them for doing so. Mr Brown argued that, when he was disciplined for not taking down the mailing list, he was being penalised for taking part in union activities. The ET agreed with Mr Brown and UCL appealed to the EAT.
The EAT disagreed with the ET over UCL’s reason for disciplining Mr Brown, although this point is more academic as it would not have affected the outcome in any event. The key point was whether the UCL’s “sole or main motive” in giving Mr Brown an oral warning related to his engagement in union activities. Both the ET and the EAT found that setting up the second list was a trade union activity and this was enough for Mr Brown’s claim to succeed.
The ET criticised UCL for amending the list in the first place, as it was essentially restricting trade union activities. However, the EAT considered that changing the mailing list was permissible if it did not, or was done in a way which did not, impinge on trade union activities.
Employers should consider the impact of planned changes on possible union activities before changing processes that affect their employees. Employers should also apply caution in disciplinary processes where the individual claims that their actions related to union activities.
