In brief
An employee who created a new email distribution list containing the email addresses of all staff in his department and refused to delete it when asked by management to do so was taking part in the activities of an independent trade union (of which he was both a member and a representative). The formal warning he received was an unlawful detriment.
Key takeaways
- A previous email distribution list had allowed all staff and the trade union to email all members of staff in the department, whether or not they were members of the union. Both recruiting and communicating with members are core trade union activities.
- The employee in this case created the new list and, after a trade union meeting, populated it with the email addresses of all members of the department. The tribunal was entitled to find on the facts that the creation of the list and the employee’s subsequent refusal to delete it were trade union activities. It was not disputed that the employer’s sole or main purpose for the warning was to discipline the employee for refusing to delete the distribution list and once it was established that this was a core union activity, that purpose was impermissible.
- Employers should be aware of the risks of taking action against employees where there may be a connection to trade union activities. What amounts to trade union activities is a question of fact for the tribunal and can be very wide.
- If the worker’s actions had amounted to a (serious) breach of data protection law, the question of whether this would have brought him outside the scope of protection of the protection from detriment on grounds related to trade union activity section 146 of TULRCA is an interesting one, but was found to be inadmissible in this case. Given the growing awareness of data protection rights and increased potential for breaches as work communications and matters move to the online space, it will be interesting to see how this position develops.
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In more detail
A worker has the right under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 not to be subjected to any detriment by any act or deliberate failure to act by their employer where the sole or main reason is to prevent the worker from taking part in, or penalising the worker for, trade union activities.
The claimant is employed by University College London. He is also a member and elected representative of a national trade union, the UCU.
Until January 2016, his department (ISD) had an email mailing list called ISD-ALL, on which all ISD staff were included. It could be used by anyone to send mail, including management, employees, the UCU and non-members of ISD staff. Some employees complained about the number and inappropriateness of the emails they were receiving, including colleagues clicking ‘reply all.’
The old ISD-ALL mailing list was therefore replaced by two new lists. One was a new ISD-ALL list, which could only be used by management or with the prior approval of the comms team. The other was an opt-in list, ISD-conversation. There also continued to be a separate list for union members.
The UCU objected to the new lists and held a meeting where members voted to have a new, open all-employee list. The claimant then created this list, despite having been warned by management not to do so. He and his fellow trade union representatives then sent an email to all staff on the list, making it clear that recipients could choose to opt out. The claimant was instructed in writing to remove his new list, but did not do so, saying he was acting in his capacity as a union representative after a meeting of members. Management then deleted the ISD-discussion list.
A disciplinary hearing took place. The claimant was given a formal oral warning on 8 March 2017 for his wilful disobedience in refusing to delete the ISD-discussion email distribution list. An appeal upheld the decision.
The claimant brought a tribunal claim, complaining that his formal oral warning was for the sole or main purpose of deterring him from carrying out his trade union activities. The employment tribunal found that on the face of it, the removal of the longstanding ISD-ALL list fundamentally changed UCU’s ability to communicate with all staff, including non-union members, which is a core trade union activity. This was particularly so where electronic communication has become the norm and in an era of increasing remote working. The tribunal also considered that recruitment of members is a legitimate trade union activity.
The tribunal found that the claimant’s actions in both setting up the ISD-discussion list and refusing to take it down were taking part in the activities of an independent trade union, and so were protected. The decision to give him an oral warning was a detrimental act for which the sole or main reason was to prevent him from taking part in, or penalising him for, trade union activities.
EAT decision
The EAT upheld the tribunal’s decision. The claimant was undertaking protected trade union activities when he created the ISD-discussion list, and when he refused to delete it. Both recruiting and communicating with members are core trade union activities. Whether the claimant’s actions amounted to trade union activities was an objective matter of fact for the tribunal to determine.
Deciding the employer’s “sole or principal purpose” for the detrimental treatment is a subjective question for the tribunal, which requires it to consider what was in the mind of the employer at that point. It was not disputed that the disciplinary manager’s sole or main purpose for the warning was to discipline the claimant for refusing to delete the distribution list, and once that was decided, even if the explanation of his purpose was accepted, it was an impermissible one.
The tribunal was entitled to decide on the facts that the disciplinary manager’s sole or principal purpose was to discipline the claimant for actions that the tribunal had already found to be trade union activities. Having done so, the claimant’s claim succeeded and the employer’s appeal was dismissed.
A significant number of UCL’s grounds of appeal were based on data protection issues, but these were not raised in Mr Grainger’s decision letter nor in the employment tribunal until closing submissions. UCL relied on IRCC v Ainsworth, saying national courts are required to consider relevant issues of EU law even if not raised at the right time by the parties. UCL did not explain why the points were raised only in closing submissions, when the claimant had not been given an opportunity to address them in his evidence, and the EAT commented that the tribunal would have been entitled not to entertain these arguments. The tribunal did, however, consider the points, and held that it was unable to decide whether the way in which the claimant had populated his new list had breached any data protection principle because of the lack of evidence on the point. The evidence before it did not support any allegation of serious breach of data protection legislation, if there was any breach at all.
EAT decision: University College London v Mr T Brown UKEAT/0084/19/VP
