Trade union reps are protected under the law from being penalised by their employer for carrying out their trade union activities. In University College London v Brown, the Employment Appeal Tribunal (EAT) held that the university’s main purpose in disciplining Mr Brown was to deter him from carrying out his trade union activities and was therefore unlawful.
Basic facts
Mr Brown, a UCU rep, worked in the university’s Information Services Division (ISD) which had operated a mailing list called ISD-ALL for about 14 years. It could be used by anyone to send email to every member of ISD staff, including trade union correspondence.
Because of the number of emails being sent through the list, managers decided to get rid of it and create two new ones, one of which was now subject to a moderation process. Staff had to opt into the other one.
The UCU objected to the changes and following a union meeting, Mr Brown created a new ISD-discussion list with the email addresses of all staff. He then sent an email to staff making clear that they could opt out of it. After being told by a manager to delete the new list, Mr Brown refused on the basis that in creating the list "I was acting in my capacity as trade union representative”.
He was disciplined for refusing to obey a reasonable management instruction (to take down the list) and given a formal oral warning. Mr Brown lodged a tribunal claim under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
Relevant law
Section 146 states that:
(1) “A worker has the right not to be subjected to any detriment … by his [sic] employer if the act or failure takes place for the sole or main purpose of— …
(b) preventing or deterring him [sic] from taking part in the activities of an independent trade union … or penalising him [sic] for doing so…”.
Tribunal decision
The tribunal held that Mr Brown’s action in setting up the new list and his refusal to take it down could not be separated from his position as a trade union rep. It was in that capacity that he had acted to countermand the steps taken by management to get better control of the email system. It was therefore these acts for which he was being punished.
On that basis, it concluded that the "sole or main purpose" in giving Mr Brown a formal oral warning for refusing to comply with the instruction to take down the email list he had created for union communications was "preventing or deterring him from taking part in the activities of an independent trade union…, or penalising him for doing so" within the meaning of section 146.
EAT decision
The EAT held that the question of the employer's "sole or main motive" was a subjective question, to be judged by enquiring into what was in the mind of the employer at the time. In this case, there was no dispute that the university’s "sole or main motive" in imposing the formal oral warning was to discipline Mr Brown for refusing to delete the email distribution list he had set up.
The question of whether he qualified for protection under section 146(1)(b) was an objective question, to be decided by the tribunal. It was clear from the tribunal’s findings of fact that it did not accept the manager’s explanation that the misconduct claim only related to Mr Brown’s refusal to take down the list as opposed to setting it up in the first place.
Given these findings, the tribunal was entitled to conclude that the employer's "sole or main purpose" in giving Mr Brown a formal oral warning was contrary to section 146. The appeal was therefore dismissed.