Is it open to an employer to justify a trade union detriment on the basis that the trade union action amounts to insubordination?
No, held the EAT in UCL v Brown.
For 14 years, a departmental email account existed at UCL which allowed unmoderated emails to be sent to all staff in the IT department. UCL decided to stop that from continuing. Mr Brown acting as a union member set up a new mailing list with the same members. He was disciplined by UCL for setting up that list, and not taking it down when he was instructed to.
The disciplinary officer, Mr Grainger, decided that in refusing to take down the list, Mr Brown had refused to follow a management instruction and was therefore disciplined with a warning. The EAT upheld the finding that this was an act of trade union detriment saying:
"There was no dispute that Mr Grainger's "sole or main motive" in imposing the formal oral warning was to discipline Mr Brown for refusing to delete the email distribution list. It followed from the ET's decision [that this was a union activity] that this alone was enough to make good Mr Brown's claim. It meant that even if Mr Grainger's explanation of his "purpose" was accepted, it was an impermissible one, and UCL therefore lost..."
The EAT also rejected an appeal that Mr Brown fell outside of the statutory protection as he had breached the Data Protection Act 1998 (then in force) or other duties; there had been no evidence led about how the list had been compiled or how Mr Brown might have breached the law.
Thanks to Matthew Jackson of Albion Chambers for preparing this case summary.