Background:

The claimants were employed by the respondent as lecturers.  Both claimants are members of the University and College Union (UCU) and at the relevant time they were Trade Union representatives at their respective campuses. Good working relationships continued until 2020 when the Covid-19 pandemic, alongside the breakdown of regional pay negotiations, placed strain on the relationships. In March 2020 the Head of HR stated that the claimant should not be contacting him directly but rather raising matters with the Deputy Head of School to seek informal resolution. The Deputy Head of School then complained to the Head of HR stating that she was being harassed by Trade Union representatives especially around the introduction of quizzes as an assessment form which the Trade Union representatives stated increased workload and stress for staff.

The claimant raised a grievance stating that the Deputy Head ignored the queries, and the harassment complaint was detrimental treatment relating to her Trade Union membership/activities. The grievance was not upheld with it being stated that going forward the claimant could continue to raise matters without risk of recourse. In September 2020 an ‘Ask me anything’ briefing was arranged with it being ‘hijacked’ according to a senior manager by the claimants who posted a series of comments putting a one-sided view of the pay negotiations. Comments were directed at one of the claimants which was critical of the UCU’s position and stating that they should return to the negotiation table.  Ms Redmond went off and was replaced by Ms Magee in the interim. Issues continued in terms of workload matters relating to assessment.  This led to discussions with the awarding boards and following that UCU members were advised that it was not compulsory for them to mark workbooks.  This led to concern that if the work was not marked then an award could not be given to a student. Ms Redmond, even though still on sick leave, sent a message into a Whatsapp group with other lecturers (without management staff) stating she was disgusted, that staff were thrown under a bus and that management had lied through their teeth. This message, unbeknownst to Ms Redmond, was forwarded to managerial staff. These issues were then raised at a Teams meeting where there was a back-and-forward between managerial staff and the claimants (and others) about the issue of workbooks. Ms Dixon, the managerial member of staff, then made a complaint about the Whatsapp message and the Teams meeting.

This led to an investigation undertaken by an external Senior HR professional.   When the allegations were put Ms Redmond apologised for the Whatsapp message. As for the Teams meeting it was put that they were Trade Union representatives, and they were representing their colleagues in relation to the workload issues that had arisen.  Others at the meeting provided evidence as part of the investigation with many outlining that it was an aggressive attack by the claimants against Ms Dixon.  The investigation found that the two claimants’ conduct met the definition of bullying.  During the period of the investigation, Ms Redmond made a subject access request as did members of managerial staff to obtain emails relating to them sent by other members of staff. The outcome of the investigation led to a disciplinary hearing but before that had been decided the claimants had brought proceedings to the Tribunal.  This led to a first written warning for the first claimant and ‘appropriate management action’ without any disciplinary penalty for the second claimant.

Outcome:

The claimants brought claims relating to detriment because of the Trade Union activities.  The Tribunal had to determine whether the actions of the claimants were activities of a Trade Union.  It was held that the message sent by Ms Redmond did not amount to such activities. Ms Redmond sought to argue that she was wearing ‘two hats’ as lecturer and Trade Union representative but as she was off at that point and her duties within the Union had been taken over there was no evidence to support that assertion. In terms of the comments made at the Teams meeting about the workbooks and workload issues it was found that the claimants were acting in the capacity of Trade Union representatives.  They were entitled, because of earlier discussions, to raise these issues without risk of allegations.  The respondent argued that it was not the content of the points but rather it was the way they were raised that caused issue. The Tribunal found that the claimants were not confrontational or aggressive in the meeting and that they did not hijack the meeting. The comments made did not accuse Ms Dixon of lying nor were there any terms of abuse used.  Considering that the behaviour was not ‘wholly unreasonable, extraneous or malicious’ as per Morris v Metrolink Ltd [2019] ICR 90 it was regarded as a protected trade union activity.

The Tribunal held that the complaint about the conduct at the Teams meeting amounted to a detriment for both claimants and that the outcome of the Dignity at Work investigation and the disciplinary action was detrimental against the first claimant only. No such finding was made in favour of the second claimant based upon the difference with the Whatsapp message.

Practical Guidance for Employers: 

This case provides some useful guidance on when individuals are acting in a Trade Union activity and when they are not.  This is obviously very important in terms of whether there could be a situation in which an individual suffers a detriment because of their actions.  In this case, the clear demarcation can be seen between the Whatsapp message in a group to other lecturers and the comments made in a wider Teams meeting with management staff. The former was clearly not a Trade Union activity whereas the latter was.  The use of Teams meetings and their recording clearly provides the Tribunal with much greater amounts of evidence and this must be considered by employers and those preparing for hearing.

NI Tribunal decisions are available on the OITFET website: 
http://www.employmenttribunalsni.co.uk/