Trade union activity does not protect threatening conduct

Background

In the case of Young v Royal Mail Group Ltd, the claimant, a delivery driver and member of the Communication Workers Union (CWU), was dismissed for gross misconduct after posting two messages in a union WhatsApp group during a period of industrial action.

One message contained an abusive expletive directed at Royal Mail. The second suggested that two named colleagues should "choose sides" during the dispute and referred to their car being blown up, followed by "lol".

One of the named colleagues reported feeling genuinely threatened by the message. Following an investigation and disciplinary process, Royal Mail dismissed the claimant for gross misconduct.

The claimant brought an automatic unfair dismissal claim, arguing that he had been dismissed for taking part in the activities of an independent trade union, contrary to section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The employment tribunal rejected the claim and the claimant appealed.

Decision

The Employment Appeal Tribunal dismissed the appeal.

It confirmed that whether particular conduct amounts to participation in trade union activities is a question of fact and degree. Simply because comments are made during an industrial dispute, or posted in a union WhatsApp group, does not automatically mean they are protected.

The tribunal had been entitled to conclude that the first message amounted to abuse of the employer rather than participation in trade union activities. Likewise, it was entitled to find that the second message, whether interpreted as a threat or an attempted joke, created a sense of menace and was not properly characterised as trade union activity.

The EAT also rejected the claimant's argument that the tribunal had applied the wrong legal test. The authorities establish that tribunals must carry out a fact-sensitive evaluation of the conduct in question rather than applying rigid legal rules. That evaluative exercise had been carried out correctly and disclosed no error of law.

Learning points for employers

This decision, whilst fact-specific, confirms that employees do not lose the protection afforded to trade union activities simply because their conduct is robust, intemperate or strongly critical of their employer. However, there are limits to that protection.

Conduct that amounts to threats, intimidation or other misconduct may properly be distinguished from participation in lawful trade union activities. The key question is whether the dismissal is because the employee participated in trade union activities, or because of separate misconduct.

Employers should therefore take care to identify the true reason for disciplinary action during industrial disputes. Decisions should focus on the employee's conduct, rather than their involvement in union activities or industrial action. A fair investigation, careful reasoning and clear documentation of the reasons for dismissal will be particularly important where disciplinary issues arise in the context of industrial relations.

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For more information or advice, please get in touch with Matt Verrier in our Employment team.