Dismissal for taking part in alleged protected trade union activity

[TrueBlueTerrier]

I think we have posted about this before but it adds more detail

https://hrprotect.wardhadaway.com/insig ... aw-update/

In Young v Royal Mail Group Ltd:

Mr Young worked for Royal Mail as a delivery driver and was a member of the Communication Workers Union (CWU).

During a period of CWU-organised industrial action, a WhatsApp group was created for union members at the depot.

Feelings among staff were running high in the period leading up to strike action.

Mr Young was a union member only, holding no office or representative role.

Mr Young posted two messages in the WhatsApp group: “F*** Royal Mail”, accompanied by a laughing emoji; and “Maybe they need to choose sides [the two named individuals] are you for the people or against the people the wrong answer will result in your car being blown up although looking at [named individual’s] not sure he would be bothered lol”.

A trainee manager complained, stating that he felt threatened and intimidated by the second message, and that he did not regard it as humorous despite the “lol”.

During the investigation, Mr Young accepted that he had made the posts, said that the second message was intended as a joke, apologised, and acknowledged that he could understand why it had been interpreted as inappropriate.

Royal Mail’s conduct and social media policies classified threatening or intimidating behaviour towards colleagues as potentially amounting to gross misconduct.

At a disciplinary hearing, the decision-maker concluded that the second message amounted to threatening and intimidating behaviour towards colleagues who had chosen not to strike, and that the first message also breached standards of conduct.

Mr Young was dismissed for gross misconduct, namely the use of threatening and intimidating behaviour towards colleagues, with reliance placed on the relevant policies and the impact of the message on the recipient.

Mr Young brought a claim in the Employment Tribunal (ET) arguing that his messages, properly characterised, amounted to taking part in the activities of an independent trade union. He claimed that his dismissal was automatically unfair (“s.152 protection”).

His claim before the ET was dismissed. The ET found that threatening or joking references to violence are qualitatively distinct from encouraging participation in ballots or industrial action and fall outside s.152 protection.

The ET characterised the first message as abuse of the employer. The ET found that the second WhatsApp message was reasonably understood by the recipient as a threat, that it created a sense of menace, and that it was not excused by being presented in a jokey manner.

The ET did not, explicitly, decide whether the second message amounted to a threat or a joke indicating that it did not need to do so because neither could amount to trade union activity.

Accordingly, neither post constituted participation in trade union activities and Mr Young was not dismissed for taking part in such activities. The ET found that the reason for dismissal was misconduct. The claim was dismissed.

Mr Young appealed and argued (1) that the ET had failed to apply the correct legal test in determining whether his dismissal was by reason of taking part in the trade union activities and (2) that if it had applied the correct test, its conclusions were wrong by failing to take account of relevant factors including the imminence of industrial action; and the nature and purpose of the WhatsApp group as a forum established by union representatives for union members in anticipation of strike action.

The Employment Appeal Tribunal dismissed the appeal:

The question of whether conduct constitutes protected trade union activity is fact sensitive; and the ET was entitled to approach the matter as one of characterisation, and to determine, on a common sense assessment of the facts as a whole, that the conduct relied upon was properly not to be regarded as participation in trade union activities.

Posting a message in a union WhatsApp group during or in the period leading up to strike action does not automatically amount to protected trade union activity. It is a fact sensitive question and the content, tone and effect of the message will be relevant to determine the matter. If disciplinary action is to be taken, employers need to clearly identify and evidence the real reason for dismissal, distinguishing misconduct from protected union activity.