Mihaj v Sodexho Ltd

For interim relief in an automatic unfair dismissal claim based on trade union activities, the tribunal must make a summary assessment of whether the claim has a pretty good chance of succeeding at the final hearing. The question is whether the dismissal was for taking part in trade union activities. The manner in which those activities were performed is ordinarily immaterial. It becomes relevant only where the conduct was dishonest, in bad faith, undertaken for an extraneous organisation or cause, or otherwise fell outside the proper scope of trade union activities. The approach in Bass Taverns Ltd v Burgess governs where it is inconsistent with the more qualified observations in Lyon v St James Press Ltd.

Mr Mihaj appealed against an Employment Judge’s refusal of his application for interim relief under section 161 of the Trade Union and Labour Relations (Consolidation) Act 1992. He alleged that Sodexho Ltd had summarily dismissed him because he had taken part in trade union activities, including representing or assisting colleagues in disciplinary matters.

The Employment Judge considered it unlikely that a tribunal would find that the dismissal was for the activities themselves rather than the manner in which they were carried out. The appeal concerned whether that approach was legally correct and whether the Employment Judge’s alternative doubts about the activities were sufficient.

1. Appeal allowed. The Employment Judge’s decision was set aside and the interim relief application was remitted to a differently constituted Employment Tribunal.
2. On an application for interim relief under section 161, the tribunal must make a summary assessment of whether, at the final hearing, it is likely that the claimant will establish that the reason for dismissal was participation in trade union activities. The relevant threshold is a greater than 51 per cent probability, expressed in Taplin v C Shippam Co Ltd as a pretty good chance of success.
3. The Court of Appeal’s approach in Bass Taverns Ltd v Burgess was applied. The manner in which trade union activities were performed is immaterial to whether they are trade union activities unless it was dishonest, in bad faith, undertaken for another organisation or cause, or otherwise took the conduct outside the proper scope of such activities.
4. The Employment Judge had treated the complaints as involving trade union activities, but then wrongly treated the allegedly improper or oppressive manner of performance as removing them from statutory protection. That was a misdirection. The Employment Appeal Tribunal did not determine the likely outcome of the substantive claim or the remitted interim relief application. The application was remitted for reconsideration.

• Employment Appeal Tribunal: Appeal allowed. The Employment Judge’s decision refusing interim relief was set aside, and the application was remitted to a differently constituted Employment Tribunal.
• Employment Tribunal: The Employment Judge refused interim relief under section 161 of the Trade Union and Labour Relations (Consolidation) Act 1992, holding that it was not likely that the claimant would establish that dismissal was for trade union activities.