Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of Young and Royal Mail Group Limited, in which the Employment Appeal Tribunal was asked to consider whether an employee was taking part in protected trade union activities when he added abusive and threatening messages to a trade union WhatsApp group. In this case, why a Royal Mail delivery driver was a member of the Communication Workers Union, CWU. Y had over 10 years' service and a clean disciplinary record when he was dismissed for gross misconduct. The reason for Y's dismissal arose when, during a period of CWU-organised industrial action, a WhatsApp group was created for CWU members at the depot where Y worked. In the period leading up to strike action, feelings among staff at the depot were running high. Y posted two messages in the CWU WhatsApp group. Firstly, "Eff Royal Mail", accompanied by a laughing emoji, and, secondly, a message naming two individuals and threatening to blow up their cars if they fail to choose the correct side in the dispute, accompanied by a LOL. One of the individuals named in the second message complained to Royal Mail, stating that he felt genuinely threatened and intimidated by the second message, and did not regard it as humorous, despite the LOL. Y accepted that he had made the post, and, following a disciplinary process, he was dismissed for gross misconduct. 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 Royal Mail's standards of conduct. Y brought proceedings claiming that his dismissal was automatically unfair on the basis that he had been dismissed for having taken part or proposed to take part in the activities of an independent trade union at an appropriate time. This claim was dismissed by the employment tribunal, which rejected the proposition that anything said in a union WhatsApp group is inherently protected. The tribunal held that the forum does not determine the character of the act before analysing the messages. It determined that neither message amounted to participation in trade union activities. Message 1 amounted to mere abuse of the employer and not an articulation or advancement of union aims. Further, message 2 amounted to either a threat or possibly a joke about violence which was incapable of amounting to participation in trade union activities. The Employment Appeal Tribunal dismissed Y's appeal and held that the Tribunal had correctly evaluated whether Y's conduct leading to his dismissal could be characterised as trade union activities. When conducting this analysis, there is no free-standing threshold deriving from case law which required the Tribunal to consider whether the conduct in question was wholly unreasonable, extraneous or malicious so as to be properly separable from the underlying trade union activities. On these facts, the Tribunal had been entitled to conclude that the two WhatsApp messages which had led to Y's dismissal could not be properly characterised as his participation in trade union activities. Look out for further episodes in this series to stay up to date on all things HR and employment law related.