Legal update: obstructing trade union activity

A recent case shows employers need to tread carefully when taking action that could impact on trade union activities

Can a refusal to comply with an employer’s order on trade union grounds ever justify detrimental treatment? No, held the Employment Appeal Tribunal in the case of University College London v Brown. 

Mr Brown is employed by University College London (UCL) as an IT systems administrator and is a University and College Union (UCU) elected representative. 

Mr Brown’s department had an unmoderated all staff email distribution list from which the union could communicate with its members. The employer proposed to reform that distribution list and replace it with both a moderated list and an opt in list. UCU objected to this proposal and Mr Brown set up a new unmoderated list from which he wrote to all staff requesting they object to the employer’s proposal. 

On 19 February 2016, Mr Brown was instructed to delete his list by 5pm. Mr Brown refused to comply with the request and informed his employer he had done so as part of his trade union role. As a result, Mr Brown was subject to disciplinary proceedings and was issued with an oral warning on 8 March 2017.

Section 146 of the Trade Union & Labour Relations (Consolidation) Act 1992 provides that a worker is not to be subject to a detriment by his employer if the sole or main purpose is preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time. 

The Employment Tribunal concluded that by creating the list and refusing to delete it, Mr Brown was taking part in trade union activities and therefore, the employer’s disciplinary action was to penalise him, and his claim succeeded. 

On appeal, the employer argued that the reason for the treatment was due to Mr Brown’s refusal to comply with its request, but the Employment Tribunal Appeal found the Employment Tribunal was not mistaken in reaching the conclusion it did and the appeal was dismissed. 

This is a useful reminder that employers should tread carefully when taking action that could impact on trade union activities.

Joanne Galbraith-Marten
RCN Head of Legal (Employment)

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