In this insight we look at the decision of the Employment Tribunal in Mr M Young v Royal Mail Group Limited which considers exactly what constitutes ‘trade union activities’ during periods of industrial action.

The facts

In the summer of 2022, the Communication Workers Union (CWU) was in dispute with Royal Mail, and industrial action was scheduled to take place in late August and early September 2022.

In preparation for the industrial action, a WhatsApp group was established by local union representatives for the union members. During August 2022, the Claimant wrote the following posts in the group:

• “F*** Royal Mail”
• “maybe they need to choose sides [two named individuals] are you for the people or against the people the wrong answer will result in your car being blown up…”.

One of the named individuals immediately complained about the post to the Claimant’s manager and described the post as “threatening and intimidating” and ultimately that he did not find the post funny.

The Claimant was suspended from his role. He then was invited to an informal fact finding meeting, and the Claimant did apologise for his behaviour, stating that he regretted his decision to make the post. The Claimant stressed that he had a completely unblemished record during his 10 years of employment, which was not disputed by Royal Mail.

The Claimant was subsequently dismissed for gross misconduct, that being “the use of threatening and intimidating behaviour towards two…colleagues”.

The Claimant brought a claim of unfair dismissal in the Employment Tribunal on the basis that:

1. his WhatsApp posts amounted to a ’trade union activity’, which meant that his dismissal was “automatically” unfair
2. his “car being blown up” comment did not amount to gross misconduct, but was being treated as such because Royal Mail had a policy of adopting a “heavy handed” approach to any misconduct linked to industrial action.

The Tribunal’s findings 

Trade Union Activity

When considering the first post, the Tribunal found that this may have been considered trade union activity if it was accompanied by a reasonable critique of Royal Mail’s latest proposals, but that simply insulting an employer was not legitimate trade union activity.

The Tribunal did not accept the argument that because the post was made in a trade union WhatsApp group it amounted to trade union activity. The Tribunal also found that whether the post was a “joke” as the Claimant argued, or a “threat” as Royal Mail had perceived it, neither of these actions are trade union activities.

“Just a joke”

The Tribunal identified that the difficulty with the Claimant’s argument that the post was a “joke” was that the named individual took it seriously and, even if it was not taken as a direct threat to blow up their car, it clearly created or conveyed a sense of menace.

The Tribunal did not accept the Claimant’s argument that the message was so obviously a joke and inoffensive that the complaint was a clear overreaction and not a reasonable interpretation of the message. The Tribunal construed that the point of the message was that people should “pick sides” and that there may be violent consequences for those who pick the “wrong” side.

When considering remorse, the Tribunal noted that the Claimant’s apology, but were troubled that when cross-examined, he maintained the position that it was a “joke” and that he had done nothing wrong.

The Tribunal found that the decision to dismiss the Claimant was within the range of reasonable responses open to Royal Mail in these circumstances.

What to take away

1. Employees should be mindful of their actions during periods of industrial action. Just because particular conduct arises during a period of industrial action, does not mean an employee will be afforded the protection provided to genuine ‘trade union activities’.
2. Employers should remind staff about their rules regarding posts that are made on social media and in group WhatsApp chats, even out of their working hours.
3. Employers should be careful when considering “jokes” made by employees to understand both the intention and the effect. In this case, the Tribunal deemed it appropriate to consider the feelings of the recipient of the comment, even though the ‘joke’ maker maintained that their complaint was an overreaction.
4. In the lead-up to industrial action, feelings will inevitably run high. However, this does not mean that employers or employees are permitted to act in a way that is contrary to usual standards of acceptable behaviours and organisational values. Employers should remind staff members that usual standards of conduct and values apply, including during periods of industrial action and on social media or in group chats.

How Capsticks can help

Capsticks has significant experience in assisting clients in relation to industrial action and disciplinary and other management procedures, as well as supporting in unfair dismissal and complex Tribunal claims.

For further information on how we might assist, please contact Nicola Green or Paul McFarlane.