Would the act of putting up a flyer in the workplace toilets encouraging trade union recruitment fall within ‘activities of an independent trade union’, such that the individual would be protected from being subjected to a detriment by the employer even if the employer was uncertain when and by whom the flyer was put up?

Under section 146(1)(b) of TULR(C)A 1992, it is unlawful for an employer to subject a worker as an individual to any detriment by any act or deliberate omission where the sole or main purpose is to prevent or deter them from taking part in the activities of an independent trade union at an appropriate time, or to penalise them for doing so.

For these purposes, ‘an appropriate time’ means:

1. •

   a time outside the worker’s working hours, or

2. •

   a time within working hours at which their employer has agreed that they may take part in the activities of a trade union (or make use of trade union services)

It is not enough that the employer has subjected the worker to a detriment—it must be shown