P Holmes v Kirklees Council

An Employment Tribunal does not err in law by finding that conduct arising in a trade union context was objectively separable from protected trade union activities. Conduct may fall outside statutory protection where it is wholly unreasonable, extraneous or malicious, although ill-judged or merely unreasonable conduct is not necessarily separable. The relevant question is the true reason or principal reason operating on the dismissal decision-maker’s mind. Fairness is assessed by reference to the disciplinary process as a whole, including any appeal. On an appeal alleging perversity, the appellant faces a high threshold and must establish an overwhelming case.

The claimant, a long-serving employee and full-time UNISON branch secretary, was dismissed following complaints of threatening, bullying, intimidating and manipulative behaviour towards colleagues. The Employment Tribunal rejected complaints of ordinary and automatic unfair dismissal and trade union detriment. It found that the dismissal was principally motivated by a conclusion that the claimant had threatened violence and had engaged in conduct objectively distinct from his trade union activities.

The claimant appealed on four permitted grounds, concerning historic allegations, comments made on the investigation report, the separability of the conduct from trade union activities, and alleged manipulation of the dismissal decision.

1. Appeal dismissed. The Employment Tribunal had not erred in law in rejecting the complaints of unfair dismissal, automatic unfair dismissal and trade union detriment.
2. Under Employment Rights Act 1996, section 98, the Tribunal must identify the factual reason or principal reason for dismissal, determine whether it is potentially fair, and then decide fairness under section 98(4) on a neutral burden of proof. The reason is the factor or factors operating on the decision-maker’s mind which cause the dismissal. The Tribunal must not substitute its own view and applies the range of reasonable responses test.
3. Fairness is assessed by considering the disciplinary process as a whole, including the appeal. The Tribunal was entitled to find that the lack of particularisation of Allegation 2 was a significant shortcoming, but that the claimant had a fair opportunity to answer the allegations and that the process overall remained fair.
4. Under Trade Union and Labour Relations (Consolidation) Act 1992, section 152, conduct occurring during trade union activities is not automatically protected if it can fairly be regarded as a distinct reason for dismissal. The relevant distinction concerns conduct that is wholly unreasonable, extraneous or malicious. Protection is not lost merely because conduct is ill-judged or unreasonable. The Tribunal’s conclusion that threatening violence and bullying, intimidation and manipulation were objectively separable was open to it.
5. The Tribunal was entitled to distinguish Ramphal v Department of Transport. It found that the dismissal decision was independently made after consideration of the evidence.
6. Perversity requires an overwhelming case. That threshold was not met.

• Employment Appeal Tribunal: The appeal was dismissed.
• Employment Tribunal: Complaints of unfair dismissal, automatic unfair dismissal for trade union activities and trade union detriment were dismissed.