David Hopper February 10 2021 Employer acted unlawfully by disciplining union activist for use of its IT systems Lewis Silkin LLP | Employment & Immigration - United Kingdom David Hopper Employment & Immigration FactsEmployment tribunal's decisionEmployment Appeal Tribunal's decisionImplications for employersUniversity College London (UCL) has lost its appeal against an employment tribunal's decision that it unlawfully disciplined a union activist for refusing to comply with an instruction to take down an email list that he had created for union communications.(1)FactsMr Brown was employed by UCL in its information services division (ISD). He was an active member and elected representative of the University and College Union (UCU), a trade union recognised by UCL.For many years, an unmoderated email distribution list had existed that enabled emails to be sent to all ISD employees. The UCU used this list to write to all ISD employees on topics such as its campaigns on issues affecting them.In 2016 UCL proposed to discontinue the list after an employee asked to be removed from it because some emails were disruptive and inappropriate. It was decided that two new lists would replace it. The first would be for management's use without moderation or for ISD employees to use on the basis that emails would be moderated. The second would be an opt-in distribution list.The UCU immediately objected to these changes as they would interrupt its ability to communicate with all ISD employees, including those who were not union members. In addition, Brown created a new distribution list and populated it with all ISD employees' email addresses, although he indicated when first using the list that they could opt-out of receiving emails.In response, UCL instructed Brown to delete his new distribution list. When he refused, UCL issued him with a formal disciplinary warning.Employment tribunal's decisionBrown brought a claim in the employment tribunal alleging that he had been subjected to a detriment by reason of taking part in union activities.The employment tribunal found that the creation of a new email distribution list amounted to taking part in trade union activities. A recognised union communicating with all ISD employees on matters of legitimate concern to them could reasonably and objectively be described as a core trade union activity.The employment tribunal went on to observe that Brown had acted only in response to UCL having fundamentally changed the landscape in terms of the union's communication access to all ISD employees. It was "fanciful and naïve" for UCL to suggest that flyers on desks and notices on noticeboards would achieve an alternative and equivalent reach to all ISD employees, in an age in which electronic communication has overwhelmingly become the norm.The employment tribunal also found that UCL's sole or main purpose in issuing Brown with a formal warning was to penalise him for refusing to take down the email list. It described the suggestion that his refusal to take down the list was distinct from the protected union activity of setting it up as "simply not a credible position".Employment Appeal Tribunal's decisionUCL appealed to the Employment Appeal Tribunal. It contended that the employment tribunal's decision raised a "fundamental, and as yet untested, point" – the extent to which an employer can regulate the competing interests of trade union freedoms, employees' privacy and data protection rights and its own right to manage its business.The Employment Appeal Tribunal noted that UCL had raised no issues of data protection law until its closing submissions before the employment tribunal, having failed to refer to them in an agreed list of issues, its pleadings, any of its witnesses' statements or in cross-examination. As such, the employment tribunal would have been entitled not to consider them at all. To the extent that the employment tribunal did deal with this issue, the Employment Appeal Tribunal ruled that its conclusions were open to it with regard to the gaps in the evidence resulting from the lateness of UCL's afterthought. This lack of evidence meant, for example, that the employment tribunal had been unable to decide whether the way in which Brown populated his new list had breached any data protection principle.On UCL's other grounds of appeal, the Employment Appeal Tribunal decided that many of them amounted to challenges to the employment tribunal's findings of fact rather than points of law. Moreover, there was no dispute that UCL's sole or main purpose when giving Brown a formal warning had been to discipline him for refusing to remove the mailing list. The employment tribunal's finding of fact that this had amounted to trade union activity was accordingly fatal to UCL's appeal.Implications for employersThis case shows that employers should be cautious when disciplining or dismissing employees for actions that could be characterised as trade union activities, even if their actions might otherwise amount to misconduct.In this case, the employment tribunal had been particularly critical of UCL's changes to its email policies given the significant impact on its recognised union's ability to carry out its core activities. UCL might have been able to avoid its defeat, or even the litigation arising in the first place, if it had proactively engaged with the UCU instead of proceeding unilaterally.Despite how frequently the issue of how unions can communicate with employees arises in practice, this case resolved no underlying legal questions regarding the correct balance between trade union freedoms, privacy and data protection rights and employers' rights to manage their business. However, the case clearly illustrates how employers seeking to assert data protection principles to restrict how their recognised union communicates with employees should ensure that they raise those issues from the outset.For further information on this topic please contact David Hopper at Lewis Silkin's London office by telephone (+44 20 7074 8000) or email ([email protected]). Alternatively, please contact Toria Barnes at Lewis Silkin's Cardiff office by telephone (+44 20 7074 8000) or email ([email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com. Endnotes(1) University College London v Brown – judgment available here.