The claimant alleged that she had been unjustifiably disciplined by Unite the Union, of which she was a branch secretary, contrary to section 64 Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) after the Union found that she had used union funds to pay for legal advice. Her claim failed at the ET because her treatment was held to come within an exception provided by section 65(5) TULR(C)A 1992. The ET concluded that: "The key consideration here was the use of union funds to sue the union, but the significance of that in this case was the use of union funds in this manner, not the fact of suing the union. We are satisfied that anyone who had used union funds in comparable circumstances, but not involving a legal challenge to a union decision, would have been treated in the same way and subject to at least the same sanctions as applied in this case." The Claimant appealed.

The EAT allowed the appeal. The ET determined itself that the same sanction would have been appropriate for the claimant's conduct, absent the protected component, rather than determining what the union would have done in such circumstances. The matter was remitted for the ET to determine this issue afresh.