Key takeaways
Forum does not determine the character of the act
Use of trade union WhatsApp group did not render messages automatically protected.
Threatening or abusive messages may be unprotected
Violent threats or intimidation in context of industrial dispute were not protected trade union activities.
Character of the conduct is paramount
Protection depends on substance, not platform or union setting.
Workers are given various legal protections when they join a union, access its services, take part in the trade union’s activities or participate in official industrial action (Trade Union and Labour Relations (Consolidation) Act 1992) (TULRCA). The EAT has recently considered whether abusive and threatening messages which were added to a trade union WhatsApp group amounted to protected trade union activities.
Y, who worked as a Royal Mail delivery driver, had over ten years' service and a clean disciplinary record prior to his dismissal for gross misconduct. Y was a member of the Communication Worker’s Union (CWU). In summer 2022, during a period of CWU organised industrial action, a WhatsApp group entitled ’CWU’ was created for union members at the depot. Feelings among staff were running high in the period leading up to strike action and Y posted messages in the CWU WhatsApp group:
’F**k Royal Mail’ accompanied by a laughing emoji and
a second message which named two individuals and threatened to blow up their cars if they failed to choose the correct side in the dispute, accompanied by a ’lol’ (to signify lots of laughs).
One of the named individuals complained, stating that he felt genuinely threatened and intimidated by the second message, and did not regard it as humorous despite the ’lol’.
Following a disciplinary process in which he accepted that he had made the posts, Y 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 standards of conduct. C brought proceedings, claiming that his dismissal was automatically unfair under TULRCA, 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.’
The employment tribunal dismissed Y’s claim. The tribunal rejected the proposition that anything said in a union WhatsApp group is inherently protected, holding that ’the forum does not determine the character of the act.’
The tribunal went on to analyse the messages and hold that neither amounted to participation in trade union activities because:
message one amounted to mere abuse of the employer and not an articulation or advancement of union aims and
message two amounted to either a threat or a joke about violence which was not capable of amounting to participation in trade union activities. Y appealed.
The EAT dismissed Y’s appeal. The tribunal had correctly evaluated whether the conduct leading to Y’s dismissal should be characterised as trade union activities. When conducting this analysis, there is no ’freestanding’ threshold deriving from case law which required the tribunal to consider whether the impugned conduct was ’wholly unreasonable, extraneous or malicious’ so as to be properly separable from the underlying trade union activities. The tribunal's conclusion that the posts were not properly characterised as participation in trade union activities was one it was entitled to reach.
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