Stay ahead of the curve with our exclusive Q&A series, brought to you by leading law firm, Arthur Cox, LLP, designed to answer your most pressing legal questions. These expert insights provide clear guidance to ensure your HR practices remain compliant and protect your organisation.  

This month's question:

Can an employer take down trade union notices if they contain derogatory comments about the employer? Can the Union Representatives be disciplined for this?

Generally, the legislation provides that an employer cannot subject an employee to any detriment, particularly if that act had the sole purpose of preventing the employee from taking part in trade union activities or to punish them for doing so. 
The first key point to consider is the action or omission of the employer, particularly if it was their “sole or main purpose”. If this is found to be in the case, then the employee is likely to be protected by the legislation. 

However, not all trade union activity is protected. For example, more extreme and malicious acts are less likely to be afforded protection. A good standard for employers to use is whether that the conduct would normally justify a dismissal. It was not the purpose of this protection to be used as an excuse or cloak for conduct that would otherwise be a ground for dismissal.

It should be recognised that the primary purpose of trade unions is to be a safe platform to voice legitimate criticism. The legislation has been drafted to afford these protections so as long as the employee’s actions did not stray into the extreme and unreasonable.

Therefore, in practice, employers should be careful and recognise that this should be analysed on a case by case basis. By using the standard of what would normally constitute a dismissal, employers can better gauge and inform their response without breaching the employee’s union rights.