University College London v Brown

Under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, the employer’s sole or main purpose is a subjective question directed to the decision-maker’s state of mind. Whether the worker’s conduct amounts to protected trade-union activity is an objective question for the Employment Tribunal.

An Employment Tribunal may find that a union representative’s refusal to comply with an instruction is protected activity where that refusal is inseparable from a trade-union initiative. If the employer’s admitted purpose in imposing a warning was to punish that refusal, the statutory purpose requirement is met. Late data-protection allegations, unsupported by pleadings or evidence, need not be entertained and cannot displace the Tribunal’s factual findings.

The claimant, an elected UCU representative employed by the university, created an all-staff email list after management replaced an unmoderated list with moderated and opt-in alternatives. When instructed to delete the new list, he refused. He received a formal oral warning for wilful disobedience.

An Employment Tribunal, by a unanimous decision dated 7 November 2018, upheld his complaint under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992. It found that both creating the list and refusing to remove it were protected union activities, and that the main purpose of the warning was to penalise him for them.

The employer appealed, principally challenging the scope of protected activity, the Tribunal’s treatment of data-protection issues, the burden of proof, and its findings on purpose.

1. Appeal dismissed. The Employment Tribunal made findings open to it and disclosed no material error of law.

2. The question whether an employer acted for the sole or main purpose specified in section 146 is subjective. It concerns what was in the mind of the person who imposed the detriment. By contrast, whether the worker was taking part in the activities of an independent trade union is an objective question for the Tribunal. The statutory term purpose must be kept distinct from the effect of the employer’s act.

3. The Tribunal was entitled to find that both establishing the email list and refusing to delete it were protected union activities. The refusal could not realistically be separated from the union’s attempt to preserve an effective means of communicating with staff about matters of workplace concern. The reasonableness of the instruction was itself bound up with that issue.

4. It was common ground that the warning was imposed because the claimant refused to delete the list. Since that refusal was protected activity, that purpose was prohibited by section 146(1)(b). The Tribunal’s further finding that the decision-maker’s stated explanation was not credible was insufficiently cogent and included superfluous criticism of management. It did not affect the result.

5. The employer raised data-protection allegations only in closing submissions. The Tribunal could have declined to entertain them. Having considered them, it was entitled to find that there was no evidential basis for a serious breach and that no alleged breach removed the claimant from section 146 protection. The burden of proof was correctly applied.

• Employment Appeal Tribunal: Appeal dismissed; the unanimous Employment Tribunal decision upholding the section 146 complaint remained undisturbed.
• Employment Tribunal: On 7 November 2018, upheld the worker’s complaint under section 146(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992. Remedy had not yet been determined.